Landlord and tenant – Housing association – Arrears of rent – Appellant tenant failing to comply with conditions of suspended possession order – Respondent landlord obtaining warrant for possession – Appellant paying rent arrears – Whether appellant entitled to have order discharged or rescinded notwithstanding breach of conditions – Whether rules of procedure permitting retrospective amendment of conditions – Appeal dismissed
The appellant held a secure tenancy of a flat. A suspended possession order was made against him after he fell into arrears of rent. He failed to comply with the terms of the order and the secure tenancy terminated in September 1997. Although some of the arrears were paid off, new arrears accrued and the respondent landlords obtained a warrant for possession. In August 2000, a district judge ordered that the warrant hearing be suspended on condition that the appellant paid the current rent and £5 per week towards the arrears. The appellant failed to comply with those terms.
When around £1,400 in rent arrears had accumulated, the appellant issued proceedings against the respondent for damages for disrepair. The respondent claimed that because the appellant had failed to comply with the terms of the suspended possession order, he was no longer a tenant and could not claim such damages. In 2006, the appellant applied, under section 85(4) of the Housing Act 1985, for the suspended order of August 2000 to be discharged or rescinded on the basis that he no longer owed arrears of rent. A few days later, the rent arrears were paid off. A district judge dismissed the application to revive his tenancy.
A first appeal by the appellant was dismissed in the county court, but permission was granted for a second appeal. The appellant contended, inter alia, that: (i) after an order for possession had been made and suspended on terms of paying off arrears and continuing to pay the rent, the order was automatically discharged by a late payment in full; (ii) by virtue of CPR 3.1(2)(a), the appeal court could vary the terms of the possession order to provide that should the rent arrears be paid in full before the date for final payment contemplated under the terms of the suspended possession order, the order would be discharged.
Held: The appeal was dismissed.
(1) In respect of a secure tenancy, a suspended possession order was not automatically discharged by a late payment of rent arrears in full. When the arrears were paid, the order ceased to be enforceable by warrant of possession but the secure tenancy did not automatically revive.
Section 85(2) of the 1985 Act allowed a court making an order for possession to postpone the date of possession. In this case, the court had suspended the execution of the possession order on the condition, which it was obliged to impose by reason of section 85(3), that the arrears of rent were paid. It followed from the appellant’s failure to comply in September 1997 that the secure tenancy terminated. When, in January 2006, the rent arrears were paid in full, the respondent was no longer able, under the terms of the order, to take steps to evict the appellant. However, because the latter had not complied with the conditions imposed under section 85(3), he could no longer apply to postpone the date of possession under section 85(2), nor could he apply to discharge or rescind the order under section 85(4), which permitted that action only if the conditions had been complied with: Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594; [2002] HLR 22 and Swindon Borough Council (formerly Thamesdown Borough Council) v Aston [2002] EWCA Civ 1850; [2003] HLR 42 followed; Payne v Cooper [1958] 1 QB 174 distinguished.
(2) CPR 3.1(2)(a) did not permit the court to rewrite a valid order made under section 85(2) of the 1985 Act or to confer a power to extend time for compliance with the 1997 order in the present circumstances. The 1985 Act laid down a statutory scheme for the regulation of secure tenancies, which provided for the suspension of a possession order on conditions: see section 85(2) and (3). A court exercising the power to suspend could be expected to balance the respective interests of landlord and tenant when the order was made. The terms of the suspension would be determined by the needs and merits of the particular situation. Although the order remained in force, the occupier might apply to the court for a further period of suspension or a variation of the conditions. The regular receipt of the sums due from the tenant (or occupier), and arrears, would be an important consideration for the landlord. It would be alien to the scheme to acknowledge a power under the rules to extend time when the object of the extension was to make possible the rewriting of a valid court order under section 85. The court had not been misled, and had been under no misapprehensions, in August 1997, when the conditions under section 85(3) were imposed: Collier v Williams [2006] EWCA Civ 20; [2006] 1 WLR 1945 applied.
Miles Croally (instructed by Oliver Fisher) appeared for the appellant; Michael Singleton (instructed by Prince Evans) appeared for the respondent.
Eileen O’Grady, barrister
