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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Poplar Housing & Regeneration Community Association Ltd v Begum & Ors  EWHC 2040 (QB) (04 August 2017)
Cite as:  EWHC 2040 (QB)
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QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPEAL
FROM THE COUNTY COURT AT CENTRAL LONDON
Strand, London, WC2A 2LL
B e f o r e :
| Poplar Housing & Regeneration Community Association Limited
|- and -
|Ms Afsana Begum
Mr Mohammed Rohim
Martin Hodgson (instructed by Moss & Co Solicitors) for the Respondents
Hearing dates: 20th July 2017
Crown Copyright ©
Mr Justice Turner :
i) By clause 4.1: the respondents agreed that they would live at the flat as their only or principal home.
ii) By clause 4.2: they were prohibited from sub-letting all of the flat.
iii) By clause 4.3: they enjoyed the right to take in a lodger or sub-let part of the flat, albeit only with the appellant's prior written permission.
iv) By clause 6.1: they covenanted to pay the rent every Monday in advance.
v) By clause 9.1: they covenanted not to use the flat for any criminal, immoral or illegal purpose.
i) The respondents and their children had moved out of the flat in early August 2015 to live with the first respondent's mother at 33 Farrance Street. In doing so, they had stopped occupying the flat as their only or principal home and had thereby breached clause 4.1 of their tenancy agreement.
ii) Contrary to the respondents' repeated denials, Ms Rehana and Mr Ahmed had in fact paid the respondents £400 per month to live at the flat. The respondents had sub-let part of the flat to them and had thereby breached clause 4.3 of their tenancy agreement.
iii) Their tale that they had left the flat in the middle of the night telling Ms Rehana and Mr Ahmed as they left that they could sleep in the family bed was as mendacious as it was absurd.
iv) The respondents had deliberately kept the locked second bedroom at the flat containing toys and a cot as camouflage to deceive the appellant into believing, in the event of an inspection, that they and their children were still living at the flat.
v) They had let out a home which ought to have been available to accommodate one of over 4,000 families on the housing waiting list many of whom were vulnerable and/or living in unsatisfactory and overcrowded accommodation.
vi) The respondents and each of the family members who gave evidence in support of them including the first respondent's mother and brothers had perjured themselves before the Court. Indeed, the respondents had lied under caution, verified false witness statements and, subsequently, lied under oath. These lies had the inevitable effect of putting the appellant to the considerable, and probably irrecoverable, expense of protracted litigation.
vii) In consequence, neither of the respondents offered the court any explanation for their conduct nor had they expressed any remorse for it. (Indeed, I gave the respondents the opportunity to come clean during the hearing of the appeal but they chose to remain mute.)
viii) To this catalogue of fraud and deception must be added the second respondent's threats and aggression towards the investigating officer and his blustering, brazen, hostile and unlawful eviction of Ms Rehana and Mr Ahmed.
ix) Notwithstanding the obvious precariousness of his position, the second respondent subsequently resorted to using the flat as a base from which to further his interest in illegal drugs.
x) Last, and probably least, the respondents were, at material times, in arrears with their rent.
THE STATUTORY FRAMEWORK
THE CASE LAW
"It is important, of course, for an appellate court to recognise that the question whether or not to suspend an order for possession … involves an exercise in discretion by the judge, to whom that power is entrusted by the statute. An appellate court, applying well-established principles, will not interfere with an exercise of discretion unless satisfied that the exercise is flawed—that is to say that the discretion has been exercised on a wrong principle, or that the decision-maker has taken into account some matter which he should not have taken into account or has left out of account something which he should have taken into account, or that for some other reason the decision is plainly wrong."
"What in my judgment can be said is that the effect of Mousah is to stress the serious nature of a breach of a condition which involves the committing of a criminal offence. The more serious the offence, the more serious the breach. Convictions of several offences will obviously be even more serious. In such circumstances, it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates, as Ward L.J. put it in Manchester City Council v Higgins  EWCA Civ 1423, a sound basis for the hope that the previous conduct will cease."
THE DECISION OF THE RECORDER
i) The respondents' case was so clouded by a miasma of lies that there was no evidence to support the Recorder's conclusion that they, with their children, had decided to move in with the first respondent's mother for wholly altruistic reasons. Indeed, on their case, they had never moved in at all.
ii) If the real reason for moving in were to look after the first respondent's brother, they could have done this without, at the same time, renting out their flat for profit to Ms Rehana and Mr Ahmed.
iii) It was but a short walk from the flat to the first respondent's mother's home, a fact which further undermines the conclusion that it was necessary for the whole family to decamp completely to allow the first defendant access to attend to her brother when needed.
UNLAWFUL PROFIT ORDERS
"Unlawful profit orders: civil proceedings
This section has no associated Explanatory Notes
(1)The court may, on the application of the landlord of a dwelling-house let under … an assured tenancy, make an unlawful profit order if—
(b)… the conditions in subsection (4) are met.
(2)An "unlawful profit order" is an order requiring the tenant against whom it is made to pay the landlord an amount representing the profit made by the tenant from the conduct described in subsection … (4)(c).
(4)The conditions … are that—
(a) the landlord is a private registered provider of social housing or a registered social landlord,
(b) the tenancy is not a shared ownership lease,
(c) in breach of an express or implied term of the tenancy, a tenant under the tenancy has sub-let or parted with possession of the whole or part of the dwelling-house,
(d) the tenant has ceased to occupy the dwelling-house as the tenant's only or principal home, and
(e) the tenant has received money as a result of the conduct described in paragraph (c).
(5) The amount payable under an unlawful profit order must be such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the landlord or the tenant, but subject to subsections (6) and (7).
(6)The maximum amount payable under an unlawful profit order is calculated as follows—
• Step 1
Determine the total amount the tenant received as a result of the conduct described in subsection … (4)(c) (or the best estimate of that amount).
• Step 2
Deduct from the amount determined under step 1 the total amount, if any, paid by the tenant as rent to the landlord (including service charges) over the period during which the conduct described in subsection … (4)(c) took place.
(7)Where an unlawful profit order has been made against the tenant under section 4, an order under this section may only provide for the landlord to recover an amount equal to the aggregate of the following—
(a)any amount by which the amount of the tenant's profit found under this section exceeds the amount payable under the order made under section 4, and
(b)a sum equal to any portion of the amount payable under the order made under section 4 that the landlord fails to recover,
and the landlord may not enforce the order under this section, so far as it relates to a sum mentioned in paragraph (b), without the leave of the court."