Carphone Warehouse UK Ltd v Cyrus Malekout (2006)
The effect of a Tomlin order settling possession proceedings was not just to create an estoppel limited to the legal conclusion that the tenant was a statutory tenant at that date but to create an estoppel as to the essential facts and circumstances underlying the agreement made at that time.
The appellant landlord (C) appealed against a decision refusing its claim for possession of a flat. The respondent tenant (M) had been granted a tenancy by C's predecessor. The landlord had terminated the contractual tenancy for alleged non-payment of rent and pursuant to the Rent Act 1977 s.2 M remained a statutory tenant if and so long as he occupied the premises as his residence. From then onwards the landlord and M were in dispute about the state of the premises. The premises became uninhabitable and no one occupied them. C then became landlord by assignment and brought proceedings claiming arrears of rent and that M had ceased to occupy the premises as his residence so that the statutory tenancy had terminated. The proceedings were compromised and the parties agreed in a Tomlin order that C would carry out works and that when they had been completed to the satisfaction of an independent expert M would become liable to pay rent. M was not satisfied with the works and refused to pay rent. C sought possession on the basis that M was no longer a statutory tenant because he had ceased to occupy the premises as his residence. The judge held that that issue had been settled under the Tomlin order and that it would therefore be an abuse of process for C to contend that M had lost his statutory protection before the date of the order; considering the position since that date M had retained the status of statutory tenant since he had intended to resume occupation once the works were completed. C submitted that the judge had erred in finding that M intended to return to the premises once the work was complete and that his decision had been perverse in the light of evidence that M had given up occupation many years previously. M submitted that the effect of the Tomlin order was not to create an estoppel limited merely to the legal conclusion that M was a statutory tenant at that date but to create an estoppel as to the essential facts and circumstances underlying the agreement made at that time.
C could have challenged M's status as a statutory tenant in the earlier proceedings but that issue had not been tried and agreement had been reached on the basis that M was at that date a statutory tenant. That agreement as to M's legal status had to be clothed with the essential underlying facts. The agreement was predicated on the assumption that M had a statutory tenancy and that he was out of actual occupation but intended to go into actual occupation when the works were finished. The agreement settled the issue of M's intention to return to actual occupation once the premises were habitable. In so far as C had evidence that M had not occupied the premises as his residence for ten years or so and had long since lost his status as statutory tenant, C had waived its right to contend for that as a conclusion of law. The issue for the judge was whether M could show that between the date of the Tomlin order and the commencement of the second proceedings M had retained an intention to return to the property when it was habitable. In relation to that period there was ample evidence from which the judge could infer that M did have that intention.