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Cenolli v Cenolli: The importance of a deed of assignment

Solicitors in London

Cenolli v Cenolli: The importance of a deed of assignment

News article published on: 19th May 2021

Claim reference F03CL750: Central London County Court

Osbornes Law was instructed by the Defendant to represent her to defend the possession proceedings issued by her daughter, the Claimant. The Claimant’s case was that the property had been assigned to her by the Defendant, with the consent of Royal Borough of Kensington and Chelsea, the local authority landlord, at their offices. The Defendant brought a counterclaim for a declaration that she remained the secure tenant at the property and to seek a possession order requiring the Claimant to leave.

The two bedroom property in dispute has been the Defendant’s home for 19 years. The Defendant is a disabled widow whose first language is not English. In 2015, the Claimant returned to the Defendant’s property and she gave birth to her first child shortly thereafter. Following an argument in early 2018, the Claimant informed the Defendant that she was in fact the secure tenant and that the Defendant no longer had tenancy rights.  Alarmed by this statement the Defendant approached her neighbourhood office to speak to her housing officer and to seek reassurance that that the Claimant was wrong and that she remained the secure tenant. Unfortunately for the Defendant, she was informed that she was not a tenant and it was suggested to her that if she was homeless then she should seek housing advice. The Defendant immediately contacted the Citizen Advice Bureau to assist her and there ensued the start of court proceedings and a bitter battle fought by the Defendant to protect her secure tenancy rights.

Manjit Mandair, the Defendant’s current housing solicitor was instructed to represent the Defendant in these, the third set of court proceedings.

By the time that this matter was heard before HHJ Roberts, sitting at Central London County Court on 19 and 20 April 2020, neither the Claimant nor the local authority had produced the deed of assignment. A forensic examination of the documents available also supported that there was no evidence that the local authority had complied with its own assignment policy and procedures to execute the deed of assignment to the Claimant. When the local authority refused to be joined in proceedings as an interested party the Defendant witness summoned her housing officer to attend the trial and to give evidence on behalf of the local authority. At court, the housing officer confirmed that no deed had been found by its searches in this matter. In giving evidence the housing officer was unable to support that the local authority had complied with its own policy and procedures.

In reaching his judgment, HHJ Roberts considered the Claimant’s evidence was unsatisfactory and unreliable. He did not find the housing officer to be a credible witness.  Further, in considering whether the Defendant was abusing the process of the court by bringing a counterclaim because she had previously brought other proceedings in the High Court and Family Courts, the Judge found no such abuse in this case. HHJ Roberts considered that there has been no judicial determination on the merits after hearing evidence as to whether the Defendant has a beneficial interest in the property, or whether there has been an assignment of the Defendant’s secure tenant to the Claimant. As a result the judge concluded that res judicata had no application in this case and rejected any contention that the Defendant’s Defence and counterclaim amount to an abuse of process.

HHJ Roberts accepted the Defendant’s evidence and found that the local authority had breached its own assignment policy and procedures and in this case, failed to assign the tenancy agreement to the Claimant.

The Judge concluded that the Claimant has not proved on the balance of probabilities that there was a legal assignment of the Defendant’s secure tenancy agreement. He found that the Defendant remains the sole secure tenant and that she has revoked the Claimant’s licence and is entitled to a possession order.

Manjit Mandair has commented that, “this has been a particularly heart wrenching case. The relationship between mother and daughter has completely broken down and that is very sad. The physical strain of being involved in complex court proceeding for a period of three years whilst not being able to use her home freely has caused significant physical and emotional suffering to my client. This really is a David verses Goliath case where my client has had to discredit a large local authority to retain her security of tenure. I would now hope that Royal Borough of Kensington and Chelsea take steps to review its practices to avoid this from ever happening again. It has been an absolute pleasure to represent the Defendant, who struggled to find a solicitor willing to defend this matter because it sounded so inconceivable that this should ever be allowed to happen in the first place”.

If you are considering assigning your tenancy or need advice in relation to an assignment, or your tenancy rights in general please do not hesitate to contact the Housing Team at Osbornes Law, and call 0207 485 8811.

 

 

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