Landlord and tenant – Housing Act 1985 – Succession – Possession order – Tenant under secure tenancy failing to comply with terms of suspended possession order – Tenant in occupation at time of death – Whether tenancy continuing until execution of possession order – Whether possible to vary terms of possession order under section 85 after death of former tenant – Appeal allowed
The appellant’s brother had been a secure tenant of the respondent council. In 1986, the respondents brought possession proceedings against him on the ground of rent arrears, which led, in 1987, to a conditional suspended possession order, not to be enforced for so long as he complied with the terms governing the payment of arrears. He failed to meet those terms and the order became enforceable. He none the less remained in the premises, paying rent together with contributions towards the arrears until he died in 2005.
In 2006, the respondents served a notice to quit on the appellant, who was then living in the flat; they subsequently brought possession proceedings against him. Those proceedings were stayed pending the outcome of an application by the appellant, under CPR 19.8, to be joined to the 1986 possession proceedings against his brother as a representative of his estate. He sought to apply in that capacity, under section 85 of the Housing Act 1985, to postpone the date for possession under the suspended possession order so as to revive the secure tenancy retrospectively; he claimed that, if the tenancy were revived, he was a person entitled to succeed to it under section 89.
The appellant’s application was dismissed in the county court, and appeals to the High Court and Court of Appeal were also dismissed: [2008] EWHC 499 (QB) and [2009] EWCA Civ 66; [2009] 2 EGLR 41; [2009] 25 EG 138. It was held that the right to revive a secure tenancy was personal to the former tenant and did not survive his death.
The appellant appealed to the Supreme Court. He argued that a secure tenancy did not end on the breach of a conditional suspended possession order, but continued until the possession order was executed; since that had not occurred, his brother’s tenancy subsisted at the time of his death and the appellant could succeed to it. In the alternative, he submitted that the right to revive the tenancy survived the death of the former tenant and passed to his estate.
Held: The appeal was allowed.
(1) Section 82(2) of the 1985 Act, which deals with possession orders against a secure tenant, could have stated that the tenancy was to determine on the date specified in the order, but it did not. The phrase it actually used, referring to the date on which the tenant “is to give up possession in pursuance of the order”, could be read as contemplating the date on which possession would actually be given up under a warrant for possession that was duly executed or acted on. The context favoured the interpretation that the tenancy ended only when the order for possession was executed. Interpreting section 85 in that way avoided the anomalous and potentially retrospectively reversible status of tolerated trespassers.
However, previous decisions of the House of Lords had upheld the contrary view. Although the court had the power to depart from those decisions, it would not be appropriate to do so. The effects of reversing the law previously regarded as settled were incalculable. That law had been acted in many cases. Social landlords, which had assumed that those who failed to comply with the conditions of a suspended possession order had no right to enforce repairing covenants, might face claims for damages for breach of those obligations. It was reasonable to assume that that factor had been taken into account in the approach taken by the Housing and Regeneration Act 2008, which had prospective effect only. That Act amended the relevant legislation for the future, to avoid the creation of further tolerated trespassers, and, although it restored tenancy status to existing tolerated trespassers, it did so not by reviving former tenancies retrospectively but by creating new tenancies. To reverse previously established case law would undermine that carefully crafted system and raise the problems that it had been designed to avoid, thereby contradicting the will of parliament: White v Knowsley Housng Trust [2008] UKHL 70; [2009] 1 EGLR 131, Burrows v Brent London Borough Council [1997] 1 EGLR 32; [1997] 11 EG 150 and Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 applied.
(2) Whether the section 85 right to apply to revive a secure tenancy could be exercised after the former tenant had died was determined by the proper construction of the 1985 Act and did not depend on whether it was a right capable of being inherited at common law. Section 85(2) provided for the court’s powers to be exercisable at any time before the execution of the possession order and made no mention of the possibility that the former tenant might have died in the meantime. Its wording did not compel a reading that denied the jurisdiction of the court to exercise its powers in those circumstances. The view that the court retained such jurisdiction was supported by other provisions in that part of the Act: see sections 87 and 90. Accordingly, the fact that the former secure tenant had died did not deprive the court of jurisdiction to exercise the power conferred on it by section 85(2) to postpone the date of possession under a possession order: Brent London Borough Council v Knightley (1997) 29 HLR 857 overruled. It was therefore open to the appellant, who sought to represent the estate of the person who had been served with a claim for possession, to apply under CPR 19.8 for the date for possession to be postponed.
An order was made appointing the appellant to represent the deceased’s estate under CPR 19.8(1)(b), and his section 85(2) application was remitted to the county court for determination.
Jan Luba QC and Desmond Rutledge (instructed by Anthony Gold Solicitors) appeared for the appellant; Richard Drabble QC and Shaw Kelly (instructed by the legal department of Southwark London Borough Council) appeared for the respondents.
Sally Dobson, barrister
