Possession orders — Housing Act 1985 — Whether necessary to specify possession date — Appropriateness of alternative form of order — Appeal allowed
Both appellants appealed against possession orders that were made against them under the Housing Act 1985, on grounds of arrears of rent, in favour of the respondent council. The orders, on standard form N28, specified a date for possession, but provided that they were not to be enforced so long as the appellants complied with the conditions as to payment of current rent and arrears. The orders had the effect of terminating the appellants’ secure tenancies on the specified date by virtue of section 82(2), after which the appellants would remain in possession as “tolerated trespassers”, provided that they complied with the orders.
On the appeals, issues arose as to: (i) whether the judges had been obliged to specify a date for possession in the orders; and (ii) if not, what alternative orders could have been made. The appellants set out a number of reasons why the status of a tolerated trespasser was unsatisfactory from the point of view of both landlord and former tenant. They suggested an alternative form of order under which the date of possession would be postponed under section 85 to a date to be fixed by the court on a future application by the landlord, with the order ceasing to be enforceable when the judgment debt was satisfied.
Held: The appeals were allowed.
(1) Nothing in section 85 fettered the discretion of a judge to make such order for postponement of possession as seemed fit. A judge was not obliged to set out an absolute date for possession on the face of the order. It was lawful to make an order that, although setting out a date for possession, provided for that date to be postponed and the tenancy to continue for so long as the conditions set out in the order were satisfied. The effect would be to postpone the date for possession for a fixed period in the first instance, and thereafter for such period as the tenant complied with his or her obligations; that solution fitted naturally with the wording of section 85(2): Sherrin v Brand [1956] 1 QB 403 considered.
(2) It was not necessary or appropriate to implement a procedure that would require a further hearing before a date for possession could be fixed, with all the attendant expense and delay that this might involve. It was sufficient for possession to be postponed on terms that required the landlord, if it wished a date to be fixed, to write to the tenant at least 14 days in advance of its application, giving details of the current arrears and its intention to request a possession date. If the tenant did not respond, or if the landlord wished to apply notwithstanding, it could then apply to the court on a “without notice” basis, submitting a copy of its letter to the tenant and the tenant’s response, if any, together with a copy of the rent account since the date of the order postponing possession. Other evidence would seldom be required. In the instant case, the claims would be remitted to the county court for determination of what, if any, terms of postponement of possession were appropriate.
Per curiam: It would be consistent with good practice for a landlord to notify the tenant of the adverse consequences of the termination of a secure tenancy when embarking upon the process that might lead to a possession order, in the interests of transparency and as an additional spur to the tenant to ensure that arrears did not continue to accumulate.
Jan Luba QC and Robert Latham (instructed by South West Law, of Bristol) appeared for the appellants; Kelvin Rutledge and Genevieve Screeche-Powell (instructed by the legal department of Bristol City Council) appeared for the respondents.
Sally Dobson, barrister
