Possession order — Postponement of possession date — Whether court having power to postpone possession after tenants voluntary giving up possession — Whether giving up possession amounting to execution — Section 85(2) of Housing Act 1985 — Whether council landlords under obligations to tenants under section 13 of Supply of Goods and Services Act 1982 — Whether obligations under section 4(4) of Defective Premises Act 1972
The council in each of the joined cases were the landlords of properties let to the tenants under secure tenancies. They applied to the court for possession orders under section 82(1) of the Housing Act 1985. Those orders were granted, and the tenancies came to an end in accordance with their terms. The former tenants continued to occupy the properties for a time, with the councils’ knowledge and acquiescence. In the first case, but not in the second, a warrant for possession was issued, but no further action was taken, and, in both cases, the tenants subsequently gave up possession of their own accord.
The tenants subsequently sought to hold the councils responsible for an alleged failure to keep the properties in repair during the whole of the tenants’ occupancy, complaining, in particular, of damp and mould. They relied upon the repairing covenants under the former tenancies, and sought to establish that those tenancies had continued throughout their occupancy. They accordingly applied, pursuant to section 85(2) of the 1985 Act, to postpone the possession date set out in the possession orders, the effect of which would be to treat the tenancies as having continued to a later date. Under section 85(2), the councils had the power to postpone the possession date “at any time before the execution of the order”. In the first case, the tenants also sought to base the council’s liability upon the duty, in section 13 of the Supply of Goods and Services Act 1982, relating to contracts for the supply of a service, to carry out the service with reasonable care and skill. They also relied upon section 4(4) of the Defective Premises Act 1972, under which a landlord who had a right, under a lease, to enter and carry out any description of maintenance and repairs was placed under an obligation to carry out those works.
The judge in the first case held that there was no power to postpone the date for possession on an application made after possession had already been given up, and he accordingly dismissed the application. He also rejected the tenants’ arguments on the 1982 and 1972 Acts. The judge in the second case reached the opposite conclusion, and allowed the tenants’ application. The losing party appealed in each case.
Held: The first appeal was dismissed and the second allowed.
1. Execution was the process for enforcing or giving effect to the possession order, and the phrase “before execution of the order” in section 85(2) referred to the completion, not the commencement, of that process: In re Overseas Aviation Engineering (GB) Ltd [1963] 1 Ch 24 applied. Although the process of execution could involve several stages, from application for a warrant of possession, eviction by a bailiff, and delivery of possession to the landlord, it did not have to. In the first case, the execution process had begun with the issue of the warrant for possession and had been completed by the tenants simply giving up possession, without the need to go through the other possible intermediate stages. There was no power thereafter for the court to make a postponing order.
2. In the second case, where no warrant for possession had been issued, the execution process had not been commenced, and so it was hard to see how it could be said to have been completed. Accordingly, there had been no execution of the order for the purposes of section 85(2). However, it was still not open to the court to postpone the possession date in that case. The obvious purpose of the section 85(2) power was to enable the court to allow the former tenant to remain in possession, provided that it complied with conditions as to the payment of current rent and arrears. The power was intended to strike a balance between the right of a public sector landlord to possession, and the social need to avoid making homeless those who had to rely upon public sector housing. Once the tenant gave up possession of its own accord, there was no need for the power. The phrase “at any time before the execution of the order” was to be read subject to the qualification that execution was needed to give effect to the possession order. Once possession was given up, execution was not needed and the section 85(2) power ceased to apply.
3. The 1982 Act was of no assistance to the tenants in the first case. A council, in recognising a tenant’s right to occupy under a tenancy, were not carrying out a service, but were simply respecting existing property rights. The rights and obligations of the parties were to be found in the terms of the tenancy, express or implied, and the Supply of Goods and Services Act 1982 could not have the effect of requiring a landlord to carry out services that he would not otherwise be required to carry out under the tenancy. Nor could a council be said to have failed to exercise care and skill in granting a tenancy that did not contain an obligation to ensure that the premises were fit for human habitation. Section 13 of the 1982 Act did not have the effect of introducing implied terms into contracts of tenancy, and the position was no different where a former tenant remained in possession as a tolerated trespasser: Brown v DPP [1956] 2 All ER 189 and Camden London Borough Council v McBride unreported 11 November 1998 considered.
4. The duty in section 4(4) of the Defective Premises Act 1972 applied only to works of maintenance or repair, and could not require the landlord to carry out works of improvement that went beyond maintenance or repair. The works demanded by the tenants in the first case were, in effect, improvements. A landlord that had a right to enter in order to carry out remedial works was not, by reason of section 4, under any obligation to remedy design defects, or to put the premises into a better condition than they were at the time when they were first let to the tenant, nor was it under a general duty to maintain the premises in a reasonable condition: Lee v Leeds City Council [2002] EWCA Civ 6; [2002] 1 EGLR 103 applied.
Jan Luba QC and Jonathan Carroll (instructed by Davies Gore & Lomax, of Leeds) appeared for the appellant tenants in the first case; Christopher Dodd and Anesh Pema (instructed by the solicitor to Bradford Metropolitan District Council) appeared for the respondent council in the first case and the appellant council in the second; Alexander Offer and Brian Cox (instructed by Davies Gore Lomax) appeared for the respondent tenants in the second case.
Sally Dobson, barrister
