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Vine Housing Co-operative Limited v Smith [2015] UKUT (LC)

On an application under s. 168, CLARA 2002, is it open to a First-Tier Tribunal (‘FTT’) to consider the consequences of its determination?

“The Tenant shall be a member of the [Landlord] Co-Operative throughout the tenancy”.

It was common ground that the Landlord had expelled the Tenant from membership on 05.09.13. The Tenant had not challenged his expulsion on any basis.

On 20.11.13, a separately-constituted FTT had found the Tenant to be in breach of a different covenant, concerning nuisance and immoral user. The 2013 s. 168 application had not relied on cl. 2.2.

The current FTT found that there had been no breach of cl. 2.2 as:

  1. The Tenant being stripped of membership of an organisation could not itself constitute breach of a covenant to be a member of that organisation;
  2. The Landlord relied upon facts which it had known of when before the FTT in 2013 but on which it had then chosen not to rely. The current s. 168 application was thus an abuse of process.

The Landlord appealed, arguing that:

As to (1): the issue under cl. 2.2 was simply whether the Tenant was a member of the Landlord company. He was not. The reason why was irrelevant.

As to (2): it could not be an abuse of process to rely upon a breach of a covenant which had not previously been before a FTT. Had cl. 2.2’s omission from the 2013 application been relevant then, before making its decision, the FTT should have asked the Landlord to explain the omission.

HHJ Gerald agreed with the Landlord on both points – the first of which was eventually conceded by the Tenant. The Judge held that:

  1. An application under s. 168 concerns the straightforward question of whether or not there has been a breach of covenant [14];
  2. Whether a finding of breach ultimately leads to possession is of no concern to a FTT [14]; and
  3. The motivations for a s. 168 application are of no concern to a FTT [14 – 15].

Rahul Varma / 18th Dec 2015


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