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Capacity to bring claim

Alamo Housing Co-operative Ltd v Meredith
[2003] EWCA Civ 495.


The landlord (Islington Council) let various properties to the tenant (a housing association), which in turn sublet the individual properties to subtenants. The landlord served a notice under a clause in the lease that provided that the term would cease at the end of the notice period "except for the purpose of enabling eviction if required by the council". The housing association then served notices to quit on the subtenants and commenced possession proceedings. The sub-tenants argued that the housing association did not have a sufficient interest to do so.


Held: It did (Manchester Airport v Dutton [2000] 1 QB 133 and Countryside Residential (North Thames) Ltd v A Child (2001) 81 P&CR 10 applied). Schiemann LJ at paras 42 and 43:
    "The situation must be judged as at the time when the Council's Notice to Quit had taken effect. At that time Alamo no longer had an estate in the land. However, since the Council had, as is conceded, required Alamo to take proceedings to evict the tenants so as to be able to hand over the properties with vacant possession, it seems to us that the effect of the Exception was to confer on Alamo a continuing right to possession for that purpose and therefore the situation is exactly as that described in paragraph 39 above. That was the evident intention behind its inclusion in the Lease, against the background of the decisions in Dutton and Countryside. Had the Council intended to grant Alamo any lesser right it would have been ineffective for the very purpose which the Council wished Alamo to achieve.

    The Defendants do not claim any right themselves to occupy the premises and the Council, which is entitled to the premises, has asked Alamo to evict the Defendants so as to be able, as near as may be, to fulfil its covenant to hand over the premises with vacant possession. Possession proceedings seem eminently suitable for achieving this aim."
In coming to its conclusion the court applied the following passages of Laws J in Dutton:
    "I think it is clear that if the airport company had been in actual occupation under the licence and the trespasser had then entered upon the site, the airport company could have obtained an order for possession; at least if it was in effective control of the land. But if the airport company, were it in actual occupation and control of the site, could obtain an order for possession against the trespassers, why may it not obtain such an order before it enters into occupation, so as to evict the trespassers and enjoy the licence granted to it? As I understand it, the principal objection to the grant of such relief is that it would amount to an ejectment, and ejectment is a remedy available only to a party with a title to or estate in the land; which as a mere licensee the airport company plainly lacks." (page 147)

    "the true principle is that a licensee not in occupation may claim possession against a trespasser if that is a necessary remedy to vindicate and give effect to such rights of occupation as by contract with his licensor he enjoys. This is the same principle as allows a licensee who is in de facto possession to evict a trespasser. There is no respectable distinction, in law or logic, between the two situations. An estate owner may seek an order whether he is in possession or not. So in my judgment, may a licensee if other things are equal. In both cases the plaintiff's remedy is strictly limited to what is required to make good his legal right. The principle applies although the licensee has no right to exclude the licensor himself. Elementarily he cannot exclude any occupier who, by contract or estate, has a claim to possession equal or superior to his own. Obviously, however, that will not avail a bare trespasser." (page 150)

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