Do You Have You Be Ousted To Succeed In A Claim For Occupation Rent? Bailey v Dixon [2021] EWHC 2971 (QB)

• Published date: 10 February 2022
• Subject Matter: Real Estate and Construction, Real Estate, Landlord & Tenant - Leases
• Law Firm: Gatehouse Chambers
• Author: Mr Michael Maris

This appeal concerned whether or not occupation rent was payable to the joint owner of a property who had left that property following the breakdown of her relationship with the other joint owner.

In short, Saini J concluded that it could be. The Court below had erred in law by refusing her claim for occupation rent on the basis that she had not been barred from exercising her legal right to occupy. Contrary to the decision of the first instance Judge, the statute and relevant authorities did not establish that an ouster of occupation was a condition precedent for such a claim.

The Factual Background

The Respondent/Claimant ('R') and the Appellant/Defendant ('A') were the joint owners of 3 Chestnut Road, Stockton-on-Tees ('the Property'). They were the carers of R's grandson, whose mother had died when he was a few weeks old. The relationship between the parties deteriorated and A left the Property. The joint tenancy was subsequently severed.

R issued Part 8 proceedings seeking an order for sale and various ancillary orders under the Trusts of Land and Appointment of Trustees Act 1996 ('TOLATA 1996') as well as the usual type of accounting and inquiries. A served a Defence and Counterclaim resisting the sale of the Property on the basis that it should be preserved for the grandson. A also pleaded a claim for occupation rent 'to reflect [R's] exclusive occupation of the trust property to reflect her exclusion from such date as the court determines to the date of judgment'. The claim was premised on a 'constructive ouster' of A by R.

The Trial Judge's Decision

Having heard the evidence the Recorder found largely in favour of R. He made an order for sale of the Property and refused to make an order in favour of A for occupation rent, or compensation, under s13(6) TOLATA 1996.

The Recorder concluded that an occupation rent was not payable because R had not denied A's legal rights of occupation. He focused on an analogy of landlord and tenant to support his decision ('the Landlord Analogy'):

In a landlord and tenant situation it is not much different to the landlord coming in and changing the locks and throwing all your stuff onto the streets. In those circumstances you are obviously entitled to damages because they are not allowed to do that without a court order. Well, this is the equivalent of that. In other words, she would otherwise have effectively been living there but the claimant prevented her from doing so, i.e., exercising her rights.

The issue on...