The Court of Appeal has allowed an appeal by the assured tenant of a London flat against a decision by Clerkenwell County Court. The court had ruled that the landlord was entitled to an order for possession of the flat at 30C Ferntower Road, Highbury, London N5, on the ground that 17 weeks’ rent was outstanding.
The county court judge held that if, under ground 8 of Schedule 2 to the Housing Act 1988, at least eight weeks’ arrears of rent remained outstanding at the date of service of the notice to quit and at the date of the hearing, a mandatory possession order must be made. In those circumstances, the court would have no discretion to adjourn proceedings to allow a cheque that had been handed to the landlord to clear.
Ruling that the county court judge had been wrong, Tuckey LJ said that the question for the court to decide was whether rent remained “unpaid” if a cheque for the arrears due at the date of the hearing had been delivered to, and accepted by, the landlord, but had not actually been paid by the date of the court hearing.
He said that the legislation gave a tenant time to pay rent and he could “save his position” by making payment right up to the date of a hearing, in which case a court would have no power to make a possession order.
“An uncleared cheque delivered to the landlord or his agent at or before the hearing and which is accepted by him, or which he is bound by earlier agreement to accept, is to be treated as payment at the date of delivery provided the cheque is subsequently paid on first presentation,” he said.
Day v Coltrane Court of Appeal (Potter and Tuckey LJJ and Wall J) 4 March 2003.
References: PLS News 18/03/03