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:
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:
Rahul Varma / 18th Dec 2015
The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.
If you like what you've read but want to know more about how we can help you, simply call us:
Alternatively you can send us an email and a member of our team will contact you as soon as possible.