Tenant’s Victory in Court of Appeal  

The landlord sought possession based on rent arrears.

The tenancy agreement provided that the rent would be increased every year on 1st day of June. The landlord then changed the day from which rent would be increased to the 1st day of April each year.

In defending the claim for possession it was argued that some of the rent arrears were not lawfully due - the element arising from the invalid notices of rent increase.

The court of appeal rejected all the landlord's arguments including one based in estoppel - on the basis that estoppel could not be used to create a cause of action (sword not shield).

The court of appeal were clearly uneasy about reaching the conclusion they did. One of the implications was that many tenants would refuse to pay the part of their arrears relating to the invalid notices. They could not then seek to recover the same by way of estoppel as equity prohibits the use of estoppel to create a cause of action.

Tony Fearnley of St Helen's-based Stephensons Solicitors, representing the tenants, said "When tenants risk the loss of their home for alleged rent arrears it is vitally important that the court is certain about the amount of money involved. The appeal court has found that the rent increases were unlawful and this decision has implications not only for the Whites and 5,000 tenants of Riverside Housing Association, but for tens of thousands of tenants of other social landlords throughout the country".

The tenants were represented by Jan Luba QC and Adam Fullwood of Counsel and Tony Fearnley of Stephensons Solicitors .

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Useful links

> All England Reporter reference: [2005] All ER (D) 79 (Dec)

> Click here for more information on the Garden Court North Chambers housing team

> Click here to view Garden Court North Chambers monthly housing legal bulletins