LANDLORD AND TENANT

Protected tenancy - death of tenant - homosexual partner 'living as his or her ...

wife or husband' entitled to succeed to statutory tenancy

Ghaidan v Mendoza: CA (Lords Justice Kennedy, Buxton and Keene): 5 November 2002

The defendant was in a permanent homosexual relationship with the protected tenant of a flat until the tenant's death.

The landlord brought proceedings against the defendant to recover possession of the flat.

The defendant resisted the claim, contending that he had become a statutory tenant of the flat in succession to the late tenant pursuant to paragraphs 2(2) and 3(1) of schedule 1 to the Rent Act 1977 (as amended by the Housing Act 1988) and any restriction to the right of succession under the Act between male and female partners was discriminatory contrary to article 14 of the European Convention on Human Rights.

The judge rejected that contention and held that he was only an assured tenant as a member of the family of the late tenant with a limited protection.

The defendant appealed.

Jonathan Small (instructed by Hugh Cartwright & Amin) for the landlord.

Paul Staddon (instructed by Oliver Fisher) for the defendant.

Rabinder Singh QC (instructed by Bindman & Partners) for Stonewall, intervening.

Held, allowing the appeal, that any discrimination based on sexual orientation infringed article 14 of the convention which had become part of English jurisprudence after the Human Rights Act 1998 had come into force; that a contrary conclusion reached by the House of Lords in Fitzpatrick v Sterling Housing Association [1999] Gazette, 10 November, 34; [2001] 1 AC 27 before the 1998 Act came into force was not compatible with article 14; that, in order to accommodate the principle of equality under the convention, the words 'as his or her wife or husband' in paragraph 2(2) of schedule 1 should be construed to mean 'as if they were his or her wife or husband'; and that, accordingly, the defendant was entitled to succeed his late partner and become a protected statutory tenant as the 'surviving spouse of his late partner' under the 1977 Act.

(WLR)

Notice to increase rent on assured tenancy - tenant's application to refer landlord's notice to rent assessment committee sent but not received before new period specified - committee lacking jurisdiction because application referred until date of receipt

R (Lester) v London Rent Assessment Committee: QBD (Sir Richard Tucker sitting as a High Court judge): 7 November 2002

The claimant occupied a flat on an assured tenancy.

The landlord's agents served a notice proposing to increase the rent to take effect on 20 March 2002, pursuant to section 13(4) of the Housing Act 1988 which provided that a new rent specified in such a notice should take effect as mentioned in the notice unless 'before the beginning of the new period specified in the notice...

the tenant by an application in the prescribed form refers the notice' to a rent assessment committee.

The claimant sent an application in the prescribed form to the rent assessment committee by first class post on 18 March 2002.

It was received on 20 March 2002, which was not before the beginning of the new period specified.

The rent assessment committee decided they had no jurisdiction to determine the rent.

The claimant sought judicial review.

Robert Latham (instructed by McMillen Hamilton McCarthy) for the claimant.

Timothy Morshead (instructed by the Treasury Solicitor) for the committee.

Held, dismissing the claim, that on a true construction, which accorded with its ordinary and obvious meaning, the word 'refers' in section 13(4)(a) meant 'delivers' rather than 'sends', so that an application could not have been referred to a person until he had received it; and that, since actual receipt had not occur within the statutory time limit, the reference was too late to take effect or to require the rent assessment committee to determine the rent.