Secure tenant – Suspended possession order – Breach – Appellant tenant subsequently paying arrears – Whether secure tenancy reviving – Whether order enforceable – Whether respondent landlord entitled to bring fresh claim for possession – Appeal dismissed
From 1987, the appellant was a secure tenant of a property owned by the respondent, a registered social landlord. The tenancy came to an end in March 2001, following the appellant’s breach of a suspended possession order made in February 2001. However, the appellant was allowed to remain in the property as long as she paid the current rent and a specified sum off the arrears. Housing benefit was paid regularly, although a small sum was due from her in respect of arrears of rent/mesne profits. On 26 October 2004, her account went into credit following receipt of one month’s housing benefit in advance.
The respondent sought possession of the property in February 2006 on the ground that the appellant, her family and associates had behaved in a manner that had caused nuisance and annoyance to her neighbours and others in the vicinity. The basis for the application was that the appellant had occupied the property as a trespasser since the termination of the secure tenancy. In the alternative, it was argued that the parties’ conduct had caused the appellant to acquire a new assured shorthold tenancy that the respondent had determined by notice under the Housing Act 1988.
The district judge ordered the trial of a preliminary issue as to whether the appellant was a tolerated trespasser and, if not, in what capacity she occupied the property. The appellant accepted that she was a tolerated trespasser but contended that the respondent’s claim for possession was misconceived because it was seeking to bring an action on the judgment in the earlier proceedings, whereas it was open to the respondent to enforce the earlier order by issuing a warrant for possession. The judge held that the respondent was entitled to bring a fresh claim for possession because the earlier order had been fully complied with and could not therefore be enforced by a warrant for possession. Accordingly, he made an order for possession.
The appellant appealed. The central issue was whether it was open to the respondent to commence new proceedings on the basis that the appellant, as a trespasser whose occupation was no longer tolerated, had no right to remain in occupation.
Held: The appeal was dismissed.
Following the decision of the Court of Appeal in Swindon Borough Council v Aston [2002] EWCA Civ 1850; [2003] 2 P&CR 22, this court was bound to hold that the court’s power under section 85 of the Housing Act 1985, although formerly exercisable in connection with the enforcement of the earlier order, did not remain exercisable when the present proceedings were commenced.
Once the judge had held that it was open to the respondent to commence new proceedings on the basis that the appellant, as a trespasser whose occupation was no longer tolerated, had no right to remain in occupation, he was bound to take the view that there was no defence to the claim for possession and to make an order for possession.
Absent an appeal from the judge’s finding that payment of the entire amount pursuant to the earlier order had been made, it could not be said that the judge was wrong to hold that that order had ceased to be enforceable.
(Per curiam): The decision in Swindon Borough Council, that the powers under section 85(2) of the 1985 Act were not exercisable once a possession order had ceased to be enforceable on payment of all the moneys due, provided a trap for former tenants and their advisers. They paid what the order required them to pay without first making an application to vary the order by postponing the date of possession. The problem would be compounded if the former tenant did not comply strictly with the conditions imposed by the order, and so could not seek to discharge or rescind the possession order under section 85(4) of the 1985 Act.
Matthew Feldman (instructed by Clifford Watts Compton) appeared for the appellant; Zia Bhaloo (instructed by Trowers & Hamlins) appeared for the respondent.
Eileen O’Grady, barrister
