Rent Acts – Discretionary ground for possession – Landlord seeking damages for trespass and arrears of rent – Tenant making counterclaim for breach of repair covenants – Judge refusing counterclaim and granting possession order – Judge refusing to suspend order – Whether appropriate to grant absolute possession order – Appeal allowed
In June 1993 the claimant landlord acquired the leasehold of 7 Cranley Place, London SW7, which was a five-floor terraced property made up of flats. Since July 1976 the defendant had been a protected tenant, under the Rent Act 1977, of room 44 of the property. The weekly rent was £57, of which £54.75 was met by housing benefit. The tenant also used room 45, a box room, for storage. Room 45 was not the subject of any tenancy and the tenant paid no rent for it.
The tenant failed to pay the shortfall in the rent not met by housing benefit and arrears built up. In 1998 the landlord brought possession proceedings in respect of the arrears of rent, totalling £511, and sought damages for trespass in relation to room 45. The tenant issued a counterclaim claiming that the landlord was in breach of repair covenants.
The judge dismissed the counterclaim, made an order for possession in relation to room 45 and awarded damages for trespass in the sum of £3,200. The judge also made a possession order in relation to room 44, which he refused to suspend, considering that the amount of £10 per week offered by the defendant would result in payments over ten years, during which it would be likely that difficulties would be encountered. The tenant appealed, contending that the possession order in relation to room 44 should have been suspended. Subsequently the arrears of £511 and mesne profits of £3,200 were satisfied as a result of a garnishee order.
Held: The appeal was allowed and the possession order set aside.
1. The decision whether to suspend a suspension order involved an exercise of discretion. An appeal court would not interfere with a decision unless the exercise of discretion by the court below had been flawed. A decision would not be interfered with just because the appeal court would have reached a different conclusion.
2. Section 100(3) of the Act did not enable a court to impose payment obligations that related neither to arrears of rent nor to future rent. The purpose of the provision was to ensure a tenant paid arrears on terms and paid rent thereafter. The judge had not properly considered whether the payment of £10 per week, which was a sum the tenant could realistically afford, would have succeeded in discharging the rent arrears of £511 alone. He had considered extraneous factors such as whether the payment would have discharged the damages for trespass. The judge had also taken into account the whole history of the relationship between the landlord and tenant, which he should not have done, since it had not formed part of the pleadings.
Paul Cairnes (instructed by Julian Holy) appeared for the claimant; Robert Latham (instructed by Tyrer Roxburgh & Co) appeared for the defendant.
Thomas Elliott, barrister
