A deputy district judge has rejected a son’s request that a possession hearing should be adjourned pending resolution of his mothers will. This was no ordinary trespass hearing…
Stratford Magistrates’ – Home of the Housing Centre
“The claimant seeks a possession order for a removal of trespassers”
A fairly standard opening line to a hearing, and one I’d heard several times during my afternoon at the Stratford Housing Centre. This was the last in a list of ten hearings – each one scheduled for 10 minutes – this turned out to have a degree of complexity that outshone all the others.
Deputy District Judge Martin Dray confirmed as much when he handed down judgment – this was not a case where the parties had formed a tenancy agreement “at arms length” but one where “the claimant is the father of the first defendant and the second defendant is the wife of the first defendant.”
There was a minor set back as certain documents had not been supplied to the judge. Should they be sent electronically? No! “E-mail is the least instantaneous form of instantaneous transfer” remarked the judge as the laptop used by counsel for the claimant was handed up whole.
DDJ Dray summarised the fathers claim as: “Your position is ‘you own it, they have no right to be there and you want it back’?” “Yes” came the response from the claimants legal representative, who appeared without his lay client present in court.
Perhaps the fathers non-attendance was for the best – the judge, having read the documents, said there was “plainly a very unhappy family relationship” citing “threats to kill, bullying, and other unsatisfactory activities“. No further details were given.
Ms MacDonald, the duty solicitor, appeared representing the two defendants. It was explained that the son and his wife had moved into the property with permission of the Mother. After she died in November 2021 her will apparently left 48% of the property to them.
It was said “the claimant has been obstructing the execution of the will” to prevent the defendants from receiving their share. Therefore “the defendants are seeking adjournment of this hearing pending a family court hearing in May“.
Before being able to respond counsel for the claimant first had to retrieve his laptop from the bench.
He submitted that “possession should be given today and if anything happens down the line in probate then that can be dealt with then“.
Asked why a possession order made in 2023 in the Family Court wasn’t enforced we were told “the claimant has tried to try and get the defendants out of the property by speaking to them and making requests“. A vigorous shaking of heads followed by the two defendants both present in court.
Identifying the issue which ended up being key to the whole case the judge asked the defendants if they actually had a defence – Ms MacDonald replied saying there has been non-engagement with the probate procedure and an adjournment was requested to allow the probate to carry on.
In handing down the decision of the court DDJ Dray referred to the pending rounds of claims to be heard in the Family Court which “may or may not be germane to occupation of the property“. One thing was clear though – This “is not a vanilla case“.
His main task was “to ask in the round if there is any defence” which would warrant an adjournment. After all “it seems prima facie that the claimant can establish an entitlement for possession“.
Referring to the defendants assertions that the Father didn’t actually want to live in the property, or might even sell it, the judge said that what he planned to do did “not have much bearing” on the case.
The judge said that “if he’s entitled to possession then the court ought to reflect that” adding that “motive was neither here not there“. This was “not an exercise to see if the landlord is more deserving than the tenant“.
Despite “pressing” Ms MacDonald “as to the what the defence was” the judge said the defendants were seeking just to “park matters” and “kick the can down the road“.
Despite the subtleties, I still need to be satisfied there is a kernel of a substantive defence and it seems to me that none here have been identified.
The mere fact they may get an interest in the proceeds of its sale under a will doesn’t afford them a right to stay in the property as against its undoubted legal owner.
Therefore, in the circumstances, having failed to clearly articulate to my satisfaction a defence to the possession claim, the claimants case must succeed and I grant the possession accordingly.
The court had one final question to answer – when should the order take effect?
The claimant requested it should take place immediately, or “forthwith” in legal terms.
The judge sided with the defendants who requested 14-days citing that this case was “very far from the normal trespass case that this court experiences” which included “squatters breaking into a property“.
Fixed costs of £424.50 were also payable by the defendants.
This 32-minute-hearing, listed for just ten, finished at 4.47pm.
Let’s hope for calmer waters ahead as their disputes travel to the Family Court in a few weeks time.
Case details:
Case number: M00CL031
Tuesday, 25th February 2025 15.00
Stratford Housing Centre Courtroom 11
Before: Deputy District Judge Dray
Stratford Housing Centre
The Court House, 389-397 High Street, Stratford, London
The mouseinthecourt has made an editorial decision not to name the parties.
Mouse in the Court 