Disputing Grounds for Possession and Property Guardians

Global 100 Ltd v Laleva [2021] EWCA Civ 1835; [2022] 1 W.L.R. 1046

In this recent decision, the Court of Appeal gave judgment on two interesting matters in the field of residential landlord and tenant litigation—namely, the test to be applied when deciding whether a claim for possession is genuinely disputed on grounds that appear to be substantial (see CPR 55.8(2)) and, secondly, the issues surrounding exclusive possession when property is occupied by a so-called property guardian.

The test for disputing a possession claim

As to the procedural point, practitioners will be well aware that a first possession hearing set down under CPR Part 55 will be a short summary hearing. The tenant may file a defence in advance or, indeed, they may (and often do) attend court on the day and tell the district judge hearing the claim the nature of their defence in outline. Where a defence has been filed in advance of the summary hearing, the judge must decide whether the defence has substance and ought to be dealt with at a trial following directions, or whether a summary possession order should be made there and then.

But how is a judge to decide whether the claim is genuinely disputed on substantial grounds? The Court of Appeal held in Laleva that the test to be applied is the same as that when considering an application for summary judgment under CPR Part 24—namely, whether the defendant has reasonable prospects of successfully defending the claim. Those principles are well established—the tenant must show that their defence is “realistic” as opposed to “fanciful”. A “realistic” defence is one that is more than merely arguable.

How that test will be applied in practice remains to be seen. A judge dealing with a long first possession list will not have the time usually available for a standard summary judgment application. Though the judge need not entertain a mini-trial of the issues, some assessment of the facts and documents will generally be required. In a borderline case, the answer may be for the parties to request a short adjournment to a longer hearing so the issue can be considered in more detail.

Property guardians

Property guardianship (where empty properties are occupied by so-called guardians in order to secure the building against trespassers and vandalism) has been a hot-button issue for a number of years. Arguments about whether the arrangements entered into by guardians confer the requisite exclusivity of possession for the creation of a lease have troubled the courts on many occasions( see, for example, Camelot Guardian Management Ltd v Khoo [2018] EWHC 2296 (QB); [2019] H.L.R. 26).

The decision in Laleva puts it beyond doubt that typical guardianship arrangements are licences, not leases. The purpose of the agreement is the provision of guardianship services. It is, therefore, imperative that the guardian company should be able to hand back possession to the owner when required. The agreement entered into by Ms Laleva set out that purpose clearly. Various clauses of the agreement (that Ms Laleva should share the property with others and occupy for a specific number of nights per week) reinforced that purpose. The Court of Appeal concluded that the position of a property guardian was, therefore, akin to that of a service occupier such as a caretaker.

Further, for similar reasons, the agreement was not a sham. Indeed, the very purpose of the agreement with Ms Laleva was the furtherance of the agreement for guardianship services that Global 100 had contracted with the property owner to provide. Finally, though the claimant had no proprietary interest in the land, it was still entitled to claim possession. Just as a tenant is estopped from denying his landlord’s title, so a licensee is estopped from denying his licensor’s title to possession of the land.

Accordingly, Ms Laleva’s defence to the claim for possession had no prospects of success and the claim was, therefore, not disputed on grounds that appeared to be substantial. Though the property owner had, in fact, by the time of the Court of Appeal’s judgment itself obtained a possession order against Ms Laleva, the effect of the decision in an ordinary case would have been that Ms Laleva would be obliged to deliver up possession of her room to the claimant.

Commentary

In effect, this decision really puts the debate relating to classic property guardianship to bed—though Khoo left open potential lines of argument to be had where guarded property is residential rather than commercial in nature (here, the property concerned was former accommodation for nurses working in the NHS), the decision in Laleva ties up that point, and highlights that the focus should be on the purpose of the agreement. Where that purpose is clearly the furtherance of an agreement that the licensor has entered into to provide property guardianship services to a landowner, the result is a service occupancy-like arrangement that does not confer exclusivity possession in a legal sense even, it seems, if the occupier factually appears to have exclusive possession of the land.

By Katie Gray

First published in the L. & T. Rev., Issue 3