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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Paratus AMC Ltd v Fosuhene [2013] EWCA Civ 827 (11 July 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/827.html Cite as: [2013] EWCA Civ 827 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Ms LESLEY ANDERSON QC SITTING AS A DEPUTY JUDGE
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEVESON
and
LORD JUSTICE FLOYD
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PARATUS AMC LIMITED |
Claimant/ Respondent |
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- and - |
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DOE FOSUHENE |
Second Defendant/ Appellant |
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WordWave International Limited
A Merrill Communications Company
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Ms Sarah Lawrenson (instructed by Optima Legal) for the Respondent
Hearing dates: 1 July 2013
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Crown Copyright ©
Lord Justice Floyd:
Background
"I spoke to the child of the occupiers. I would say he was only 14 years old. His parents weren't home, but he said Mr Maru did not live there and they were renting the property. He did not have any contact numbers, so I left him with the occupier's letter and asked him to give it to his parents and get them to call in."
"I am advised by the claimant that no other contact was established with the occupiers either prior to or since. It is therefore denied that the claimant entered into any payment agreement with the defendant either as alleged or at all"
The judgments below
"Putting the evidence of Ms Fosuhene at its highest, which for the purposes of today I think it right I should, it may be said that she has been making monthly mortgage payments and speaking to the Claimant about the level of those payments. It is not however alleged nor is there any evidence to support it that the Claimant expressly or in my view impliedly consented to Ms Fosuhene becoming the tenant of the Claimants or that the Claimants agreed to treat the tenancy as binding on it. Indeed the evidence is that the Claimants were not aware of the tenancy agreement and had not seen the relevant document.
In those circumstances, it does not seem to me that Ms Fosuhene has a realistic prospect of being able to establish that the tenancy which she undoubtedly appears to have been granted by someone connected with either Mr Dixit Shah or Mr Maru is binding on the Claimant. The position is that the tenancy was one created subsequent to the charge and without the consent of the legal chargee and I am not satisfied that there is any material to support a case that the Claimant as mortgagee has acted in a way as to preclude it from denying that it has consented to Ms Fosuhene being its tenant."
The grounds of appeal
i) There was an arguable case on the evidence that Paratus had waived the right to treat Ms Fosuhene as a trespasser, or were estopped from doing so;
ii) The judge should have found the defendant had obtained an equitable right to remain in the property on the terms of her lease;
iii) The judge should not have decided disputed questions of fact;
iv) The judge should have held that Ms Fosuhene had acted to her detriment by making the payments to Paratus.
Mortgagee treating tenant as his own
"The result of those authorities seems to me to be this. It is not to be denied that there may be cases where a mortgagee may so conduct himself as to confirm in some way a tenancy which has been created by the borrower in favour of a short-term tenant. It, no doubt, depends on the circumstances of the particular case whether that recognition of a tenancy has occurred, so that the mortgagee is bound to treat the tenancy as lawful against him and cannot evict the tenant, but otherwise it seems to me that, where the statutory power of leasing is exercisable only with the written consent of the mortgagee, a tenancy created by the mortgagor without that consent is not binding on the mortgagee. In the circumstances of the present case the mere refraining by the building society from taking action to evict the tenant and doing nothing for some eight months cannot amount to such recognition of the tenancy as to deprive them of their right to recover possession of the property, not only against the borrower, but also against the tenant who holds only by such right as the borrower would give her. Accordingly, it seems to me that there is no answer in this case to the claim to possession by the building society, and that the society is entitled to succeed."
"When a mortgagor has granted a tenancy which is not binding on the mortgagee the latter can, instead of treating the tenant as a trespasser, consent to treat him as his own tenant or he may act in such a way as precludes him from saying that he has not consented to take him as a tenant. Such an acceptance by the mortgagee of the mortgagor's tenant, whether express or implied, or operating by way of estoppel, must, I think, amount to a creation of a new tenancy between the parties. The tenancy between the mortgagor and the tenant is not one which is merely voidable by the mortgagee if he chooses not to accept it, but which he can confirm by waiving his right to avoid it. It is a nullity as against the mortgagee and so, if the mortgagee is to lose his right to treat the mortgagor's tenant as a trespasser, it must be because the tenant has become the mortgagee's tenant under a new tenancy."
"I have to say whether (looking at the facts as a whole and putting myself in the position of a juryman) the society had consented to accept the tenant as tenant"
The arguments on appeal
i) Paratus had known that the premises were rented from the visit report in December 2009.
ii) Paratus knew that the occupier was not Mr Maru, because Mr Maru had come forward and said he was not the purchaser.
iii) She had been paying sums into Paratus' account.
iv) Paratus must have realised that the person paying these sums was the person in occupation.
Disposal
Lord Justice Leveson
Lord Justice Longmore