Council obtaining possession order against secure tenant – Tenant failing to meet conditions for suspension of order – Council forbearing to enforce order – Tenant paying off all arrears – Tenant suing council landlord for breach of repairing covenants – Whether tenancy had been revived for purpose of bringing action – Judge finding that tenant was no more than a tolerated trespasser – Tenant’s appeal dismissed
In September 1984 the claimant and her husband (H) took up the tenancy of a house owned by the defendant council that became a secure tenancy under Part IV of the Housing Act 1985. It was understood by both parties that so long as the tenancy subsisted, the council was under certain repairing obligations.
In January 1989 the council, seeking to recover substantial arrears in rent and costs, obtained an order for possession on the following terms: (i) that the order would not be enforced so long as the arrears were paid off in instalments, at a rate of £1.70 per week; and (ii) that the order would cease to be enforceable once the arrears were paid off in full.
Over the course of the following 2 years, the arrears were paid infrequently and irregularly, and, at some stage, H left the property to live elsewhere. By June 1997 the arrears had fallen to £5.82, and remained at that level for some time. In April 1999 the claimant issued proceedings, accusing the council of serious breaches of their repairing obligations, and sought damages in excess of £10,000. In June 1999 the claimant completely paid off the outstanding arrears.
Held: The appeal was dismissed.
1. It was well established that by section 82 of the 1985 Act, a suspended order for possession would bring the tenancy to an end from the moment that the tenant ceased to comply with the conditions of the order: see the observations of Russell LJ in Thompson v Elmbridge Borough Council [1987] 1WLR 1425, as endorsed by the Court of Appeal in Lambeth London Borough Council v Rogers [2000] 03 EG 127and Pemberton v Southwark London Borough Council [2000] 2 EGLR 33.
2. Between the date specified by the order for the giving up of possession and the date of execution of the order there was “a period of limbo”: the old secure tenancy had gone but might yet be revived by a further order of the court, made under section 85 of the Act, varying the date for possession. However during the limbo period, neither party could sue the other with regard to the covenants in the old tenancy: see Lambeth London Borough Council v Rogers (supra)
3. As judicially construed, section 85 expressly contemplated the possibility that the court might postpone the possession date, even where the tenancy was at an end, thereby reviving or reinstating the secure tenancy, which, thereafter had to be treated as having continued without interruption: see the observations of Millet LJ in Greenwich London Borough Council v Regan (1996) 28 HLR 469, as approved by Lord Browne-Wilkinson in Burrows v Brent London borough Council [1997] 1 EGLR 32 and applied in Rogers (supra), where the council’s repairing obligations had been held to be retrospectively revived.
4. However, in the present case, no order had been sought or made that would have revived the tenancy. There was no authority for the claimant’s submission that such revival had occurred automatically when the arrears were eventually paid off, nor was it possible to read the part of the 1989 order that related solely to enforcement as a variation order made under section 85 of the Act.
5. Moreover, the fact that the council had allowed the claimant to remain in occupation, subject to meeting certain payment conditions, did not require the court to find an intention to revive the tenancy by process of waiver or otherwise. The council had merely agreed to forbear from executing the order, thus treating the claimant, in the words of Lord Browne-Wilkinson in Burrows (supra), as a “tolerated trespasser”. In any event a revival by agreement could not have been effective without the participation of H.
Stephen Knafler (instructed by Roskell Davies, of Brownhills) appeared for the claimant; John Holroyd (instructed by the solicitor to Bradford Metropolitan District Council) appeared for the defendant.
Alan Cooklin, barrister
