Ker v Optima Community Association [2013] EWCA Civ 579 (24 May 2013)

Ker v Optima Community Association [2013] EWCA Civ 579 (24 May 2013)

The tenancy and option agreements, properly construed, did not give Ms Ker a proprietary right to the deposit incentive absent exercise of the option to purchase. The agreements were not a sham or pretence. The loss of the deposit incentive did not amount to deprivation of a possession under Article 1 Protocol 1 ECHR. The order for possession was proportionate under Article 8 ECHR given the contractual terms, Ms Ker's inability to pay, and Optima's legitimate interests.

Citation
[2013] EWCA Civ 579
Parties
Appellant/defendant: Jasmin Ker; Respondent/claimant: Optima Community Association
Jurisdiction
England and Wales
Judgment Date
24 May 2013
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Assured Shorthold Tenancy, Option to Purchase, Article 8 ECHR, Article 1 Protocol 1 ECHR, Possession Proceedings, Deposit Incentive, Proportionality, Sham/pretence in Contracts
Housing Law Contract Law Human Rights Assured Shorthold Tenancy Option to Purchase Article 8 ECHR Article 1 Protocol 1 ECHR Possession Proceedings +3 more

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Parties

Jasmin Ker

Appellant/defendant

Optima Community Association

Respondent/claimant

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the tenancy agreement and option agreement created a right to the deposit incentive as a possession under Article 1 Protocol 1 ECHR
  2. 2 Whether the order for possession was disproportionate under Article 8 ECHR given the loss of the deposit incentive
  3. 3 Whether the contractual arrangements amounted to a sham or pretence

Ratio Decidendi

The tenancy and option agreements, properly construed, did not give Ms Ker a proprietary right to the deposit incentive absent exercise of the option to purchase. The agreements were not a sham or pretence. The loss of the deposit incentive did not amount to deprivation of a possession under Article 1 Protocol 1 ECHR. The order for possession was proportionate under Article 8 ECHR given the contractual terms, Ms Ker's inability to pay, and Optima's legitimate interests.

Court Disposition

Appeal dismissed

Orders

  • Order for possession of the property confirmed
  • Judgment for arrears of rent in the sum of £9,046.82 up to 1 March 2012 and thereafter at a daily rate of £24.96 until possession