Assured shorthold tenancy — Claimant obtaining possession order on mandatory ground — Whether possible to suspend on ground that order made in action for forfeiture of a lease — Section 89 of Housing Act 1988 — Section 138 of County Courts Act 1984 — Claim allowed
The claimant had let a flat to the defendant on a one-year assured shorthold tenancy dated May 2003. The defendant subsequently fell into rent arrears and the claimant served notice that it intended to seek possession under section 8 of the Housing Act 1988. A possession order was later granted in the county court under the mandatory ground for possession in ground 8 of Schedule 2 to the 1988 Act.
The defendant applied to the High Court for a suspension of the warrant for possession issued as a consequence of that order. Under section 89 of the 1988 Act, possession could not be postponed by any variation, suspension or stay of execution, save where exceptional hardship would be caused, unless the case fell within one of two exceptions. The defendant sought to rely upon the first exception, in section 89(2)(b), namely that the order was made in an action for the forfeiture of a lease. The judge held that an arguable case could be made that the claim was for a forfeiture of the lease, so that section 138 of the County Courts Act 1984 would apply and the bar to suspending possession orders, under section 89, would be removed. The claimant applied to have the order set aside.
Held: The claim was allowed.
An order for possession made on a mandatory ground brought an assured tenancy to an end. The terms of the 1988 Act expressly ruled out a claim for forfeiture: (i) by section 5(1), which provided the only route for bringing an assured tenancy to an end; and (ii) by section 45(4), which made an express declaration to that effect for the avoidance of doubt: Artesian Residential Developments Ltd v Beck [1999] 2 EGLR 30 applied. There was no possibility of an assured tenant claiming relief against forfeiture under section 138 of the 1984 Act. The exception in section 89(2)(b) of the 1988 Act did not apply in the present case. Section 89 applied in any court in the country, and was not restricted to the county court: Bain & Co v Church Commissioners for England [1989] 1 WLR 24 not followed; Hackney London Borough Council v Side by Side (Kids) Ltd [2003] EWHC 1813 applied. Even if the court were satisfied that the defendant would have suffered exceptional hardship by being evicted, it had no power to postpone the enforcement of the order, since the maximum six-week postponement period permitted for such cases had passed.
Philip Rainey (instructed by Judge Sykes Frixou) appeared for the claimant; the defendant appeared in person.
Sally Dobson, barrister
