Ker v Optima Community Association

Ker v Optima Community Association

The tenancy and option agreements, properly construed, did not give Ms Ker a proprietary right to the deposit incentive unless she exercised the option to purchase. The agreements were not a sham or pretence. The loss of the deposit incentive upon termination of the tenancy did not amount to deprivation of a possession under Article 1 Protocol 1 ECHR. The order for possession was not disproportionate under Article 8 ECHR given the arrears, the scheme's purpose, and Ms Ker's inability to afford the property.

Parties
Appellant/defendant: Jasmin Ker; Respondent/claimant: Optima Community Association
Jurisdiction
England and Wales
Judgment Date
24 May 2013
Procedural Posture
Civil Appeal / Appeal From Order for Possession and Judgment for Rent Arrears
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
Landlord and Tenant Human Rights Contract 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

Civil Appeal / Appeal From Order for Possession and Judgment for Rent Arrears

Legal Issues

  1. 1 Whether the tenancy and option agreements created a right to the deposit incentive as a possession under Article 1 Protocol 1 ECHR
  2. 2 Whether the order for possession and loss of deposit incentive was disproportionate under Article 8 ECHR
  3. 3 Whether the tenancy agreement was a sham or misrepresented the true agreement between the parties

Ratio Decidendi

The tenancy and option agreements, properly construed, did not give Ms Ker a proprietary right to the deposit incentive unless she exercised the option to purchase. The agreements were not a sham or pretence. The loss of the deposit incentive upon termination of the tenancy did not amount to deprivation of a possession under Article 1 Protocol 1 ECHR. The order for possession was not disproportionate under Article 8 ECHR given the arrears, the scheme's purpose, and Ms Ker's inability to afford the property.

Court Disposition

Appeal dismissed

Orders

  • Order for possession of the property affirmed
  • 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