Landlord council and tenant entering lease whereby landlord entitled to collect amount for water charges – Landlord claiming arrears from tenant – Bulk of arrears relating to water rates – Landlord seeking possession order – Whether water charges were rent – Whether reasonable to make possession order for non payment of water rates – Judge refusing to grant possession – Appeal allowed in part
The plaintiff council were a local authority and landlords of 10 Rupert Gardens, Loughborough Estate, London SW9. The defendant had been the tenant of the house since January 16 1984 and was a secure tenant within Part IV of the Housing Act 1985. The tenancy was granted by a document which she signed setting out figures for ‘maximum net rent’, ‘general rent’ and ‘water rate’. By the document the defendant had confirmed that she accepted the accommodation subject to the clauses applying to tenancies of council dwellings. Clause 8.4 of the 1992 document contained a term that rent and other charges were to be paid promptly and when due. The council gave written notice under section 83 of the Act of its intention to seek possession of the house on ground 1 of Schedule 2 to the Act which applied where ‘rent lawfully due . . . has not been paid or any obligation has been broken or not performed’. The reason given was that rent and other charges outstanding at August 1 1994 were £701. Of the sum, the bulk related to water charges. The landlord applied for possession.
The judge held that the water charges were recoverable under the terms of the tenancy and the charges were rent for the purposes of ground 1 to Schedule 2 and sections 84(1)(2)(a) and 85(3)(a) of the 1985 Act. The judge gave judgment for £801.87, but refused to make a possession order having regard to the terms of section 84(2)(a), which stated that the court was not to make a possession order unless it was reasonable to do so. The council appealed.
Held The appeal was allowed in part.
1. The effect of the agreement between the council and the tenant had entitled the council to claim from her the water rate or charges which the council had arranged with the water authority or company to collect.
2. It was clear that the general water rates which were outstanding contractually either constituted ‘rent’ or constituted an ‘obligation of the tenancy’ within ground 1 of Schedule 2 to the Housing Act 1985.
3. The judge’s approach as to whether it had been reasonable to grant a possession order had been wrong in principle and influenced by irrelevant considerations. There was no justification for saying that it would only be in ‘exceptional’ circumstances that the court would make an order for a possession based on the breach of a tenant’s undertaking to pay water charges to the council. The judge should have made a suspended possession order.
4. However, the council had subsequently agreed that the DSS was to pay a weekly amount towards the tenant’s arrears, and therefore there was now no purpose in making a suspended possession order.
Christopher Baker (instructed by the solicitor to Lambeth London Borough Council) appeared for the appellant; the respondent appeared in person.
