Landlord and tenant — Secure tenancy — Repairs — Landlords obtaining possession order against tenant — Section 85 of Housing Act 1985 — Possession order later discharged — ‘Limbo period’ — Whether order under section 85(2)(b) retrospectively revives tenancy and repairing obligations — Whether landlord liable for repairs during period of tolerated occupation from date of possession order to its later discharge
In February 1992 the respondent became a secure tenant of premises
owned by the appellant council. Under the conditions of the tenancy, the
council agreed to keep in good repair the structure and outside of the
premises. The respondent fell into arrears of rent. In October 1992, following
the issue of a summons by the council, the county court made a suspended order
for possession upon terms that the money judgment should not be enforced for so
long as the respondent punctually paid certain instalments of the rent arrears.
The respondent failed to comply with the terms of the order, although she
continued to make erratic payments. In September 1996 the respondent commenced
proceedings against the council claiming breach of the express repairing
obligations
claimed damages and an order for specific performance to carry out certain
repairs. In September 1997 the respondent applied for an order under section 85
of the Housing Act 1985 that the possession order be rescinded, discharged or
that the date of possession be postponed. In April 1998 the respondent made an
agreement with the council to pay off the rent arrears. In November 1998 the
county court judge made an unconditional order under section 85(2)(b) of the
1985 Act discharging the 1992 possession order and gave judgment for £4,642.82
on the respondent’s claim for damages. The council appealed; they contended, inter
alia, that the status of the respondent was that of a tolerated trespasser
to whom they owed no contractual or statutory repairing obligations.
end at the latest by the end of December 1992 when the respondent failed to
make the first stipulated payment. After 1992 the respondent was in occupation
of the premises as a tolerated trespasser; the council’s repairing liabilities
ended with the tenancy. During this ‘limbo period’ the respondent could not
have enforced the repairing covenants. In late 1996 the council could have
applied to strike out the respondent’s claim for breach of these covenants. The
April 1998 agreement did not create a new tenancy (Burrows v Brent
London Borough Council [1996] 1 WLR 1448). The county court judge correctly
exercised his discretion under section 85 of the 1985 Act in discharging the
possession order. The effect of the discharge of the possession order under
section 85(2)(b) was that the council’s repairing obligations were
retrospectively revived; the council were rightly held liable in damages for
breach of covenant. The 1998 agreement itself was not effective, without the
necessity for any further court order, to revive and reinstate the old secure
tenancy to make the council retrospectively liable.
The following cases are referred to in
this report.
Burrows v Brent
London Borough Council [1996] 1 WLR 1448; [1996] 4 All ER 577; [1997] 1
EGLR 32; [1997] 11 EG 150; (1997) 29 HLR 167
Greenwich London
Borough Council v Regan (1996) 28 HLR 469
Routh v Leeds
City Council unreported 12 March 1998
This was an appeal by Lambeth London
Borough Council from a decision of Judge Gibson in Lambeth County Court
discharging a possession order obtained by the council against the respondent,
Miss Hawa Rogers, and giving judgment to the respondent on her claim against
the council for damages for breach of repairing covenants.
Romie Tager QC and Montague Palfrey (instructed by the solicitor to
Lambeth London Borough Council) appeared for the appellants; Kim Lewison QC and
Matthew Hutchings (instructed by Douglas, Narayan & Partners) represented
the respondent.
Giving the first judgment, MUMMERY
LJ said:
Issue
The principal point on this appeal is this: in what circumstances
are a local authority liable to a former secure tenant, against whom they have
obtained, but not enforced, a possession order, for disrepair of the premises
in the tolerated occupation of the former tenant?
In this case, an action for damages for disrepair was started
against the local authority landlords by a former secure tenant who had become
a ‘tolerated trespasser’. The action was brought in the statutory ‘limbo
period’ between (a) the determination of the secure tenancy as a result of
non-compliance with the terms of a possession order and (b) the date when the
court discharged the original possession order. Did the discharge or variation
of the possession order by the court (or an agreement between the parties in
similar terms) make the local authority retrospectively liable to a claim for
breach of covenant at a time when no tenancy of the premises existed?
The resolution of these questions turns on the application to the
facts of this case of section 85 of the Housing Act 1985, as interpreted by the
House of Lords in Burrows v Brent London Borough Council [1996] 1
WLR 1448*. The practical problems posed by the questions are likely to confront
many local authorities and their advisers up and down the country.
*Editor’s note: Also reported at [1997] 1 EGLR 32
Section 85 provides:
(1) Where proceedings are brought for possession of a
dwelling-house let under a secure tenancy… [for non-payment of rent] the court
may adjourn the proceedings for such period or periods as it thinks fit.
(2) On the making of an order for possession of such a
dwelling-house on any of those grounds, or at any time before the execution of
the order, the court may —
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks fit.
(3) On such an adjournment, stay, suspension or postponement the
court —
(a) shall impose conditions with respect to the payment by
the tenant of arrears of rent (if any) and rent or payments in respect of
occupation after the termination of the tenancy (mesne profits), unless
it considers that to do so would cause exceptional hardship to the tenant or
would otherwise be unreasonable, and
(b) may impose such other conditions as it thinks fit.
(4) If the conditions are complied with, the court may, if it thinks
fit, discharge or rescind the order for possession.
Facts
On 17 February 1992 Miss Hawa Rogers became a secure tenant of
premises belonging to the council in South Brixton at 22, Hardham House, Tulse
Hill Estate, London SW2 . The weekly rent was £30.14. In the tenancy conditions
the council expressly agreed to keep in good repair the structure and outside
of the premises.
Miss Rogers fell into arrears with the rent. The council took out a
summons for possession in the Lambeth County Court. On 13 October 1992 the
court made a suspended order for possession. It ordered that the council
recover possession of the premises and the sum of £871.70 for arrears of rent
and £130 for costs. It was ordered that judgment for possession should not be
enforced for 28 days in any event and for so long thereafter as Miss Rogers
punctually paid to the council the arrears of rent and mesne profits by
instalments of £5 per week in addition to the current rent, which was £33.78
per week. The money judgment for the total of £1,001.70 was not to be enforced
for so long as she punctually paid the instalments of £5 per week.
By 21 December 1992 Miss Rogers was in breach of the terms of the
order. She later failed to comply with the terms of an agreement made with the
council on 31 May 1994. She remained in occupation. She continued to make
erratic payments, funded by housing benefit.
On 12 September 1996 she started proceedings against the council
claiming breach of the express repairing obligations under the tenancy
agreement and as implied by virtue of section 11 of the Landlord and Tenant Act
1985. She complained of poor insulation, condensation, dampness, mould and
fungus. She claimed damages, including special damages totalling almost £1,000.
She sought an order for specific performance to carry out repair works set out
in a schedule.
In their defence, served in March 1997, the council denied
liability, disputed the extent of disrepair and quantum and expressly pleaded
that, as Miss Rogers had not complied with the terms of the order of 13 October
1992, she had ceased to be a tenant of the premises as from the date of that
breach (21 December 1992) and was not entitled to enforce the repairing
covenant.
By April 1997 the council had in fact done the repairs to the
premises. The proceedings continued. On 12
issued an application seeking orders under section 85 of the Housing Act 1985
that the 1992 possession order be rescinded or discharged or that the date of
possession under the 1992 order be postponed, on the grounds that she had
adhered to an agreement made with the council on 31
On 20 April 1998 Miss Rogers made an agreement with the council to
pay off rent arrears. The agreement is contained in a standard form printed
document prepared by the council acting through a Mr
divided into 5 sections. In section 2 (arrears details) Miss Rogers stated that
she owed the council £2,051.32 in rent arrears. In section 3 (agreement
details) she agreed to pay all her current rent charges plus £16.27 off the
arrears every week, making a weekly total of £69.23 to be paid monthly by a
standing order of £300.
Section 5 is important. It is headed ‘What you need to know’ and
provides as follows:
1. We will not take you to court for rent arrears so long as you
keep to this agreement and your financial circumstances do not change.
2. We will take you to court if you miss one payment.
3. You must tell us if your financial circumstances get better or
worse.
4. We will still take you to court if we have already taken legal
action against you for rent arrears.
5. If we already have a possession order against you, we will go
back to court to evict you if you break this agreement.
Section 6 (tenant’s statement) states above the signature of the
tenant that:
I understand this agreement and what will happen if I break it.
The agreement is silent on both the pending claim for damages and
the pending application under section 85 to discharge the possession order or
to postpone the date for possession.
On 2 September 1998 the application to postpone the date in the
possession order was amended to ask that, should Miss Rogers be successful in
that application and recover damages for disrepair in excess of the current
rent arrears, the possession order should be rescinded or discharged under
section 85(4) of the 1985 Act.
Judgment
The claim for damages and the application under section 85 of the
1985 Act were heard by Judge Gibson at Lambeth County Court on 23
1998. The judge discharged the 1992 possession order, gave judgment for
£4,742.82 on the damages claim, ordered that the judgment be satisfied in part
by the cancellation of the debit balance on the rent account and gave liberty
to apply as to the amount of the balance. The council appeal against that
order.
The judge’s findings and reasoning may be summarised as follows:
1. Miss Rogers failed to make payments to the council in accordance
with the 1994 agreement.
2. She had made the agreed payments under the agreement of
20
expect any failure to maintain payments.’
3. The April 1998 agreement did not bind the council to treat the
1992 possession order as having been discharged:
At most it is an agreement by the [council] to continue to treat
Miss
long as she maintains payments under the agreement. As was stated in Burrows
the status of tolerated trespasser carries with it the opportunity to apply to
the court for a variation of the original suspended possession order with a
view in a proper case that the court may order that the secure tenancy be
restored retrospectively together with the rights and obligations arising under
it.
4. The extent to which Miss Rogers had complied with the agreement
was sufficient for him to exercise his discretion in her favour under section
85(2)(b). He held that not much should be made of antecedent failures;
that there was evidence that Miss Rogers had a regular income; that the
probabilities were that continued compliance with the arrangement ‘is not
vulnerable’; and that if she was restored to the status of a secure tenant
there was every prospect that she would comply with her obligations as a
tenant. He concluded that:
If there was no disrepair claim… I would order that the possession
order… be varied by providing for possession within 28 days from today
suspended on payment of £300 per calendar month together with increases to take
effect when the current rent increases…
5. That conclusion entitled him to entertain the disrepair claim.
He found that the claim was established on the evidence. He assessed the
general and special damages in a sum that exceeded the rent arrears. He then
exercised his discretion under section 85(4).
Grounds of appeal
The council submit that the judge should have dismissed the
application to vary or discharge the possession order and the claim for damages
on the following grounds:
1. The status of Miss Rogers was that of a tolerated trespasser
after her failure to comply with the suspended possession order at the end of
1992.
2. As she had failed to comply with the terms of that order and a
further agreement made prior to 20 April 1998, he wrongly exercised his
discretion to discharge or vary the possession order in her favour. The effect
of his order was to restore the secure tenancy to Miss Rogers before her
arrears of rent were cleared and to treat her as now able to maintain her
disrepair claim. It was wrong to exercise discretion in favour of a person who
had not discharged the rent arrears identified in the April 1998 agreement and
without regard to the fact that the effect of his order was to impose on the
council a retrospective liability to pay substantial damages to her.
3. The council were then held liable for disrepairs in the period
from the end of 1992 until April 1997. Throughout that period they were under
no contractual or statutory obligation to Miss Rogers as a tolerated
trespasser. A burdensome liability was retrospectively imposed on the council
by the court merely on the basis that, at some future possible time, Miss
Rogers would apply for and obtain a variation of the original suspended
possession order. That liability did not arise under the April 1998 agreement,
as the parties did not intend to produce a situation in which the council would
be retrospectively liable for repairs and the liability set off against the
arrears of rent. Further, the order of the judge did not accurately reflect the
April 1998 agreement. If an order was made, it should have been under section
85(2)(a) rather than an order with retrospective effect under section
85(2)(b). That retrospective liability should not have been used to wipe
out the entirety of the rent arrears of over £2,000, which had given rise to
the agreement. It cannot have been intended by parliament to impose on tolerant
local authority landlords a contingent liability for the consequences of a
failure to repair in circumstances where the occupier was a trespasser and
where no issue of disrepair had arisen at the time when the original possession
order was made.
Permission to appeal had been refused by the judge, but was granted
by the Court of Appeal on a paper application. Permission was also given at the
hearing to serve a respondent’s notice seeking to affirm the decision on the
further ground that the effect of the April 1998 agreement was to waive
previous breaches of the suspended possession order so that: (a) they must be
treated as if they had not occurred; (b) the tenancy must be treated as if it
had not determined; and (c) Miss Rogers is to be treated as a tenant entitled
to claim damages for past breaches of covenant.
Legal position
An odd feature of the appeal is that both sides argued that the
judge had not correctly applied the reasoning of the House of Lords in Burrows.
Detailed submissions were made by Mr Kim Lewison QC, for Miss Rogers, and by Mr
Romie Tager QC, for the council, on the speeches of Lord Browne-Wilkinson and
Lord Jauncey in the House of Lords and on parts of the judgment of Millett LJ
in Greenwich London Borough Council v Regan (1996) 28 HLR 469,
which were approved in Burrows.
This appeal raises a significant point on the retrospective impact
of the revival of secure tenancies on the obligations and rights of the
parties. Although this particular point did not arise for decision in the
earlier cases, the legal outcome is clear on the authorities and on the facts
of this case. This appeal should be dismissed.
Termination of the tenancy
The secure tenancy of Miss Rogers came to an end on the date when
she failed to comply with the terms of the suspended order of 13
1992. This occurred at the latest by the end of December 1992, possibly earlier
when she failed to make the first stipulated payment. If she had found
difficulty in complying with the terms of suspension she could have applied to
the court to vary them. She did not do so.
After the end of 1992 Miss Rogers was in occupation of the premises
as a tolerated trespasser. The secure tenancy had come to an end. So had the
covenants, including the council’s repairing covenant. That was not, however, a
final or irreversible situation. The possession order had not been executed.
That makes all the difference to the statutory protection of Miss Rogers under
section 85. As was pointed out in Burrows at p1454H:
A secure tenancy protected by Part IV of the Act of 1985 is not
like an ordinary tenancy. It can only be terminated by an order of the court
ordering possession to be given on a particular day or in a particular event.
But even determination by order of the court is not final. Until the possession
order is executed, the court can by variation of its order change the date on
which possession is to be given and thereby revive a secure tenancy which has
already been terminated. During the period between the date specified by the
order for the giving of possession and the date on which the order is executed
there is a period of limbo: the old tenancy has gone but may yet be revived by
a further order of the court varying the date for possession.
During the ‘limbo period’ Miss Rogers could not enforce the
repairing covenant against the council. She was not a tenant. There was no
tenancy in existence. The council could have applied to the court in late 1996
to strike out her claim against them. But they did not do so. Nor did they
enforce the possession order. Instead they made an agreement with her on 20
April 1998 tolerating her continued occupation of the premises. This case turns
mainly on the legal effect of that agreement and its relevance to the exercise
of the discretion of the court under section 85.
20 April 1998 agreement
It was accepted by Mr Lewison that the agreement did not create a
new tenancy of the premises. That was ruled out by the decision in Burrows.
In the absence of special circumstances, the parties to an agreement not to
evict a former tenant, against whom a possession order has been made but not
executed, do not intend in fact and do not in law create a new secure tenancy
under Part IV of the 1985 Act in favour of the former tenant: see
pp1455H-1456A. Pending the possible revival of the old secure tenancy, and
while the agreed conditions are being complied with, the presence of the former
tenant in the premises is tolerated by the landlord council. If, however, the
old secure tenancy is revived or reinstated, the former tenant becomes a secure
tenant once more.
There are three key questions.
1. Was the old secure tenancy of Miss Rogers revived by the
agreement of 20 April 1998 without the need for any court order? In my
judgment, ‘No.’
2. If a court order was necessary, did the judge correctly exercise
his discretion under section 85 in making his order of 23 November 1998? In my
judgment, ‘Yes.’
3. What was the effect of the order on the liability of the council
to Miss Rogers for disrepair of the premises during the ‘limbo period’? In my
judgment, the council’s repairing obligations were retrospectively revived by
the order and the council were rightly held liable in damages for breach of
covenant.
According to the terms of the April 1998 agreement, the council
would not enforce the 1992 possession order to evict Miss Rogers for so long as
she kept to her agreement for the payment of current rent and payment off of
arrears; and the date for possession was to be postponed until she failed to
comply with its terms. Miss
order was not executed. She was still a tolerated trespasser in the premises
when she came before the court with her application for orders under section 85
and her claim for damages for disrepairs occurring in the ‘limbo period’. The
court had power to make an order on her application under section 85(2)(b)
to postpone the date of possession for such period and on such conditions as to
payment of rent and other conditions as it thought fit. Indeed, as Lord
Browne-Wilkinson said in Burrows at 1455E, there was little doubt as to
how the court would exercise that discretionary power in these circumstances:
If the tenant has complied with the agreed conditions, there can
be little doubt that the court would make the required order.
It is also clear from Burrows that the effect of a court
order postponing the date for possession under section 85(2)(b) is that,
unless the court otherwise directs, the secure tenancy is revived, and that the
revival applies retrospectively to the covenants, as well as to the tenancy
itself: see p1455D-F.
Because the validity of the court order was challenged by the
council as a flawed exercise of judicial discretion, Mr Lewison attempted to
decouple the April 1998 agreement from the court’s statutory discretion under
section 85 by contending that the agreement was in itself effective, without
the necessity for any further court order, to revive and reinstate the old
secure tenancy and to make the council retrospectively liable to Miss Rogers
for past breaches of the repairing covenant. Although he accepted that the
agreement could not itself vary the terms of the possession order of 13 October
1992 (see Burrows at p1453G), he contended that, by the agreement, the
council had consented to compliance with the agreement as sufficient compliance
with that order; that, as between the parties, the previous breaches of the
terms by Miss Rogers were waived by the council and should be treated as if
they had not occurred; that the new agreed terms replaced the original terms of
the court order; that the original possession order was accordingly superseded;
that this prevented the secure tenancy from being brought to an end, or, if it
had already been determined, it prevented it from being regarded as determined;
that Miss Rogers’ rights as tenant, including the repairing obligations, are
treated as having continued by virtue of the agreement; and that she is
entitled to maintain her action against the council, even in the absence of a
valid court order under section 85(2)(b).
Mr Lewison based this part of his case on the lucid analysis of the
legal position by Millett LJ in Regan, conveniently summarised at p478.
That analysis was approved by Lord Browne-Wilkinson in Burrows at
p1453D. The context of the analysis of Millett LJ and the approval of it in Burrows
is crucial. The analysis was not simply contractual. It was made in the setting
of and for the purpose of explaining the very broad discretionary powers
exercisable by the court under section 85 at any time before the execution of
the order for possession. The powers were summarised by Millett LJ at p475 and
p476 where he concluded that a secure tenancy may be determined and revived as
a result of the orders of the court, even in cases where there have been
breaches of the terms of the order which have lead to the making of a fresh
possession order suspended on different terms. He considered the specific
question whether the parties could by agreement revive or reinstate the tenancy
without obtaining a court order to that effect. He held that it was a question
of fact in every case whether past breaches had been waived and whether the
terms of the existing order had been modified by agreement, so that the tenancy
continued as if there had been no breach and the tenancy was treated as if it had
not been determined. Millett LJ expressed the view, at p480, that, if that were
the case on a particular set of facts, then:
If at any time after either such agreement the… [former tenant]
had applied to the court under section 85 to postpone the date for possession
in order to accommodate the agreement reached with the Local Authority, the
court would in practice have had no alternative but to accede to the
application.
In Burrows the House of Lords accepted Millett LJ’s analysis
as relevant ‘to the effect of section 85’: see p1453D-H.
In practice the position is that, if the parties are at one on the
effect of the terms of the agreement not to enforce the possession order, there
is no need for them to go through the formalities of an application to the
court simply to obtain an order under section 85 to give effect to their
understanding of their agreement. That would be what Millett LJ described at
p477 as an ‘unnecessary formality’. Applications in agreed cases would clutter
up the county court for no good reason: see also Burrows at p1454E-F and
p1459D-E.
The practical position is different, however, where the parties are
in dispute, for example, about the effect of their agreement on their rights
and obligations in the ‘limbo period’. An application to the court would be
necessary to resolve that dispute. The court could then be asked to exercise
its discretionary powers under section 85. As Lord Browne-Wilkinson said in Burrows
at p1455E, there is little doubt that, in the case of a tolerated trespasser
who has complied with the agreement, the court would make the required order.
The important point is that the court ultimately retains an
overriding discretion under section 85 to make what order it considers fit.
Mr
the sense explained by Millett LJ, is necessarily determinative of the result
should be rejected. Such an agreement would no doubt provide the court with
cogent material for the exercise of the discretion under section 85, but it
would not be effective to oust the statutory regime of an overriding discretion
relating to the protection of secure tenancies.
Discretion
In any event, the ‘agreement point’ is unnecessary for Miss Rogers
to succeed in resisting this appeal.
There is no error of principle in the judge’s exercise of his
discretion, nor can it be said that it was plainly wrong. The parties had made
an agreement that Miss Rogers would not be evicted if she kept to the
agreement. She kept to the agreement, which was treated as compliance with the
terms of the order of 13 October 1992. The judge took that agreement into
account. He was entitled to treat the terms of it and Miss Rogers’ compliance
with it as justifying the exercise of the power to postpone the date of possession
under section 85(2)(b). He also took into account the fact that the
secure tenancy would be revived by an order under section 85(2)(b) and
that, in consequence, the council would become retrospectively liable to her
under the repairing obligations. The judge did not leave any relevant factor
out of account.
Mr Tager cited the case of Routh v Leeds City Council
unreported 12 March 1998, in which the Court of Appeal declined permission to
appeal from the refusal of the judge to exercise his discretion to postpone the
date of possession. The court saw no possible ground for interfering with the
exercise of his discretion when, on the facts of that case, it was unjust to
the council to reinstate the tenancy retrospectively, so that they would have
obligations to a tenant thrust upon them, ‘although the tenant was one who had
never consistently discharged her obligation to pay rent to them.’ The
tolerated trespasser in that case had failed to comply with the terms of the
agreement. The decision neatly illustrates both the breadth of the judge’s
discretion under section 85 and the proper limits on the power of the Court of
Appeal to disturb the exercise of it.
I would dismiss this appeal.
OTTON LJ agreed with both judgments and did not
add anything.
Also agreeing, SIMON
BROWN LJ said: I too
agree with Mummery LJ’s judgment and for the reasons he gives would dismiss
this appeal. Having regard to the importance of the case, however, and the
skilful argument of counsel on both sides, I would add a short judgment of my
own.
The critical question facing the judge below — a question that had
simply not arisen in the earlier cases — was whether or not to allow Miss
Rogers to claim damages in respect of the disrepair of the premises between
December 1992 and April 1997, ie during the ‘limbo period’ when she was a
‘tolerated trespasser’.
The 1985 Housing Act provides mechanisms whereby either result
could have been achieved. By making the unconditional order he did under
section 85(2)(b) of the Act, the judge revived the previously determined
secure tenancy (determined through breach of the terms of the suspended
possession order by virtue of section 82(2) of the Act) with retrospective
effect. He could, however, have made that order subject to a condition (see
section 85(3)(b)) that Miss Rogers’ damages claim (or part of it) should
not be pursued, or he could instead have made an order under section 85(2)(a),
which would have left Miss Rogers as a tolerated trespasser and, therefore,
unable retrospectively to enforce the repair covenant.
I agree with Mummery LJ that the answer to this critical question
was not to be found in the April 1998 agreement. That agreement was to my mind
equally consistent with the council consenting merely to a stay of execution of
the possession order as with their agreeing to postpone the date of possession.
Nor is it necessarily implicit in the terms of the agreement either that Miss
Rogers’ outstanding damages claim would be waived or that it would not. True it
is, as the council points out, that the acknowledged debt of £2,051 in respect
of rent arrears was silent as to any claim to set off for damages for
non-repair. But there was no express agreement by Miss Rogers to waive that
claim, as, of course, there could have been.
Can the judge, then, be criticised for deciding to allow Miss
Rogers’ claim as he did? I confess that at one stage of the argument I had been
attracted to the council’s case. They had, after all, no need to have entered
into the April 1998 agreement: they could simply have set in train the
execution of their long-outstanding possession order, the terms of which (and
of the subsequent agreement of 31 May 1994) Miss Rogers had consistently
breached — a course of action that would have left Miss Rogers unable to claim
damages for disrepair during the limbo period. And I was further struck by the
fact that, from April 1994 to March 1997 (throughout, that is, much of the
period of disrepair), Miss Rogers was in receipt of housing benefit, which paid
her rent in full save only for water rates of some £3 per week. Given that she
was a tolerated trespasser during those years and, therefore, strictly liable
only for mesne profits (the value of her use and occupation of the premises),
one might have thought that her ‘rent’ should have been reduced or extinguished
to take account of the disrepair, and the housing benefit fund thus spared,
rather than that Miss Rogers should, in fact, be paid (as in effect she has
been) for her years of trespass in the premises.
I am persuaded, however, first, that the housing benefit dimension
to this case is strictly immaterial: its outcome cannot depend on who paid the
weekly rent. Second, the council really cannot complain of being held liable
retrospectively under their repair covenant; after all, they continued to debit
Miss Rogers for her full ‘rent’ during the whole period of her trespass, and it
is difficult to see why this should have been payable unless only she was
inhabiting premises in a proper state of repair. Third, the solution to the
problem lay in the council’s own hands. I repeat, they could have insisted, had
they thought it right to do so, upon Miss Rogers waiving her claim for
disrepair as a condition of entering into the April 1998 agreement. She could,
of course, have refused and still returned to court and sought to persuade the
judge to make a section 85(2)(b) order. But without the benefit of the
agreement, and, indeed, several months’ satisfactory compliance with it, she
could hardly have expected to succeed upon such an application. And this point
surely is the answer to Mr
case, local authorities will not in future allow defaulting tenants a second
chance lest they are thereby held liable for breach of backdated obligations.
I make one further point. On any view, it seems to me appropriate
that the council should have been subject to their covenanted repair obligation
since the April 1998 agreement. Had Mr Tager’s submissions been accepted,
however, this would not have been so: no such obligation would have arisen
until the court first made an order under section 85(2)(b) (or, indeed,
on his most extreme submission, until all the arrears had been discharged so
that an order could be made under section 85(4)).
In short, two matters now seem to me clear: first, that a section
85(2)(b) order is fully retrospective in effect; second, that the judge
was entitled to make such an order in the circumstances of this case.
The appeal is therefore dismissed.
Appeal dismissed.
