Assured tenancy – Registered social landlord – Tenant falling into rent arrears – Landlord seeking possession of premises – Court making possession order but suspending execution – Tenant seeking to exercise right to buy – Whether assured tenancy terminating – Whether appellant remaining as “tolerated trespasser” – Appeals dismissed
The appellant held an assured tenancy of a property under the terms of the Housing Act 1988. She fell into rent arrears and the respondent landlord brought proceedings, under section 7 of the 1988 Act, for possession of the property. The district judge ordered that the appellant should give up possession of the premises on or before 6 July 2004. However, exercising the power of the court to stay or suspend the order under section 9(2) of the 1988 Act, the judge said that the order should not be enforced provided that the appellant paid the rent arrears together with an amount to cover the use and occupation of the property and costs totalling £2,250 at a rate of £5 per week. This was on the standard county court form N28.
The appellant wished to exercise her right to buy the premises under Part V of the Housing Act 1985. Section 82(2) of the 1985 Act provided that where a landlord obtained an order for the possession of a dwelling-house that was held on a secure tenancy, the tenancy ended on the date upon which the tenant was to give up possession under the 1988 Act in pursuance of the order. However, there was no similar provision in relation to assured tenancies.
An issue arose as to whether the overall effect of the order was that the appellant remained in the premises as an assured tenant or whether that tenancy had terminated on the latest date stated in the order for the delivery of possession. The respondent’s view was that the appellant was no longer a tenant but a trespasser, so that she was ineligible for the right to buy.
The court ordered the appellant to apply for a declaration that she was still an assured tenant. The judge dismissed that application but granted leave to appeal to the Court of Appeal. The appellant was also granted permission to appeal out of time against the original order of the district judge.
Held: The appeals were dismissed.
Where the county court was dealing with an assured tenancy, and granted an order for possession using standard form N28 but suspended its execution on terms, the assured tenancy was deemed to have expired on the last date stated for possession and the occupant remained as no more than a “tolerated trespasser”. The only right that the occupant retained after the making of a possession order was a right to remain in the premises provided that he or she observed the terms upon which enforcement was suspended: Sherrin v Brand [1956] 1 QB 403 considered.
The absence of any provision in the 1988 Act relating to assured tenancies and equivalent to section 82(2) of the 1985 Act did not make any difference to the proper construction of an order for possession made against an assured tenant. If an order in fact specified a date for the giving up of possession, the tenancy would terminate upon that date: Thompson v Elmbridge Borough Council [1997] 1 WLR 1425, Harlow District Council v Hall [2006] EWCA Civ 156; [2006] 1 WLR 2116 and Bristol City Council v Hassan [2006] EWCA Civ 656; [2006] 1 WLR 2582 considered.
The statutory provisions did not mandate any particular solution and so it was necessary to construe the order made by the county court, particularly when the court exercised its wide powers under section 9(2) to (4) of the 1988 Act to suspend execution or postpone the date of possession. Where the order had not been suspended or postponed, either on its making or before execution, the order for immediate possession terminated the tenancy: Artesian Residential Developments Ltd v Beck [1999] 2 EGLR 30; [1999] 22 EG 145 considered.
It would be inconsistent with the basic principles of landlord and tenant law to hold that a tenant retained a contractual tenancy after he or she had lost the right to possession by being ordered to give it up to the landlord.
Jan Luba QC and Adam Fullwood (instructed by Stephensons, of St Helens) appeared for the appellant; Edward Bartley Jones QC and Michael Singleton (instructed by Anthony Collins LLP, of Birmingham) appeared for the respondent; Christopher Baker (instructed by the Treasury Solicitor) appeared for the Secretary of State for Communities and Local Government, intervening.
Eileen O’Grady, barrister
