Tenant in arrears of rent – Landlord in breach of covenant to repair – Landlord seeking possession order – Arrears of rent reduced to take into account disrepair – Judge making suspended possession order – Whether appropriate to suspend possession order – Appeal allowed
In 1982 the defendant tenant commenced occupation of 49 Vallance Road, London E1 at £15 per week under a statutory tenancy protected under the Rent Act 1977. On 1983 the rent was increased to £17 per week. In 1998 the tenant ceased to pay rent. In August 1992 the claimant landlord purchased the property and he gave an undertaking to the previous owners in relation to the tenant’s rent arrears. In March 1995 the landlord sought possession of the property. The tenant disputed the rent arrears on the basis that the property was in a serious state of disrepair and the landlord was in breach of his repair covenants.
Prior to the hearing before the district judge the parties resolved their financial difficulties by setting off £10,000 for disrepair against £20,000 arrears plus interest. The judge accordingly entered judgement by consent for the landlord in the sum of £14,503. The judge made an order for possession in favour of the landlord which he suspended on the terms that the tenant pay the current rent and £5 per week towards the arrears. He stated that he was suspending the order because the landlord had allowed the matter run on for a long time with the arrears mounting up and without any repairs being done.
The landlord appealed contending that the judge’s decision to suspend the order was perverse and unreasonable having regard to: (i) the amount of arrears; (ii) the duration of time that the tenant had not paid rent; (iii) the tenant’s inability to give any satisfactory explanation for his non-payment of rent; and (iv) the fact that repayment at £5 per week would take more that 55 years, which was not a reasonable time period.
Held: The appeal was allowed.
1. A suspended possession order should be made only when special circumstances existed. It should be for a definite period which did not extend into the mists of time and had some relevance to the facts existing at the date when the order was made: see Vandermolen v Toma (1981) 9 HLR 91.
2. The judge was right to approach the matter on the basis that the tenant’s capability to pay off the substantial sum of arrears was severely limited. However, he was wrong to attach too much importance to the particular history of the matter and the way the arrears had arisen, and too little attention to the fundamental purpose of a possession order, which was to enable arrears to be paid off within a reasonable time. The judge was wrong to consider suspending the order when it was clear that the arrears could not be paid off within a reasonable time. The judge had attached too much weight to the landlord’s failure to carry out repairs, which he should not have done since that had been covered by the setting off of £10,000 against the arrears. Accordingly, it was appropriate for the court to exercise its discretion and order that the possession order take effect within 28 days.
Brian Leech (instructed by GH Gelberg & Co) appeared for the claimant landlord; Robert Levy (instructed by Maxim Solicitors) appeared for the tenant respondent.
Tom Elliott, barrister
