The assured tenant of a London flat is challenging a Clerkenwell County Court ruling that his landlord was entitled to a possession order for the flat at 30c Ferntower Road, Highbury, London N5, on the ground that 17 weeks’ rent was outstanding.
That order overturned a previous decision of a district judge, who had adjourned the matter to allow time for a cheque for the full amount of the arrears to clear.
The judge held that if, under ground 8 of Schedule 2 to the Housing Act 1988, there are arrears of at least eight weeks’ rent at the date of service of the notice to quit and at the date of the hearing, a mandatory possession order must be made and the court has no discretion to adjourn the proceedings.
In the Court of Appeal, Mark Wonnacott, counsel for the tenant, said that the cheque had cleared, and argued that, following case law, payment was “deemed”, to have been made upon receipt of a cheque, if that cheque was subsequently honoured.
He claimed that the sending of a cheque to the landlord’s solicitor amounted to a conditional payment, and that, in the circumstances, the rent was not outstanding at the date of the hearing.
Simon Braun, solicitor-advocate for the landlord, said that a conditional payment could not be used in cases relying upon ground 8 because it would “thwart the clear intention of section 9(6), which disallows any adjournment where a mandatory ground is made out”.
He argued that a tenant “would always be able to prevent a ground 8 order from being made at the date of hearing by presenting a conditional payment at, or a short time prior to, the hearing”.
The hearing continues.
Day v Coltrane Court of Appeal (Potter and Tuckey LJJ and Wall J) 4 March 2003.
References: PLS News 05/03/03
