Possession orders – Suspension on terms – Housing Acts 1985 and 1988 – Whether breach of suspended possession order ending assured tenancy – Whether former secure tenant still able to apply for discharge of suspended possession order where order ceasing to be enforceable upon payment of arrears and costs – Whether revival of secure tenancy by discharge of possession order reviving right to buy previously established – First and third appeals allowed – Second appeal dismissed
In three conjoined appeals, issues arose as to the effect of suspended possession orders on the status and rights of tenants under the housing legislation. The first concerned an assured tenant under the Housing Act 1988, while the other two related to secure tenancies under the Housing Act 1985. In each case, a possession order had been made and suspended on terms as to payment of rent and arrears.
Each case was the subject of a separate judgment by the Court of Appeal: see [2007] EWCA Civ 404; [2007] 2 EGLR 61; [2007] 30 EG 134 (White), [2008] EWCA Civ 363; [2008] 2 EGLR 133 (Islington) and [2008] EWCA Civ 196; [2008] 2 EGLR 125 (Porter). The conclusions of the Court of Appeal that were challenged on the three appeals were, respectively that: (i) in White, the appellant had ceased to be an assured tenant and had become a tolerated trespasser upon breach of the terms of a suspended possession order; (ii) in Islington, a tenant’s right to buy from the appellant landlord, which had been suspended when she became a tolerated trespasser upon breaching the terms of a suspended possession order under the 1985 Act, had revived with her secure tenancy upon the discharge of the order, with the result that she could pursue her previously established claim and was not obliged to recommence the right-to-buy process by serving a new section 122 notice; and (iii) in Porter, the appellant could no longer apply, under section 85(2) or (4) of the 1985 Act, for the variation or discharge of a suspended possession order relating to a secure tenancy in circumstances where that order had ceased to be enforceable upon the appellant paying off all arrears and costs.
Held: The first and third appeals were allowed; the second appeal was dismissed.
(1) Where a suspended order for possession was made under the 1988 Act, the tenancy came to an end only when possession was delivered up upon execution of the order. The wide powers conferred on the court, under section 9 of the 1988 Act, to vary, discharge, stay or suspend the execution of a possession order indicated that the assured tenancy was to continue in the meantime, until those powers came to an end upon execution of the order. In that respect, an assured tenancy under the 1988 Act differed from a secure tenancy under the 1985 Act, which would end either if the terms of suspension were breached, or, those terms indicated that the possession order took effect on a specified date, even if the terms were complied with. Continuing a 1988 Act tenancy until the date upon which the order for possession was executed would avoid placing former assured tenants in the anomalous position of a tolerated trespasser, with the same attendant difficulties and uncertainties surrounding the parties’ rights and obligations as had arisen with regard to that status under the 1985 Act. Although that meant that the effect of a possession order under Part I of the 1988 Act was different from that of an order under Part IV of the 1985 Act, the wording of the two Acts was different and logic did not compel the same result for each: Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, Burrows v Brent London Borough Council [1997] 1 EGLR 32; [1997] 11 EG 150; Harlow District Council v Hall [2006] EWCA Civ 156; [2006] 1 WLR 2116 and Artesian Residential Developments Ltd v Beck [1999] 2 EGLR 30; [1999] 22 EG 145 considered.
(2) In order to enforce the right to buy under the 1985 Act, a person normally had to be a secure tenant, or an assured tenant, throughout the period from service of the section 122 notice exercising the right until completion was effected. In a case where a secure tenancy was determined pursuant to a court order for possession, the right to buy was suspended but not permanently removed. A tenant who had previously served a section 122 notice would not lose the right to rely upon that notice; if and when the secure tenancy was retrospectively revived by the subsequent discharge of the possession order, the right to buy under the earlier notice was revived also and could be pursued. It was doubtful whether the court’s power, under section 85(3)(b), to impose conditions on the discharge of a possession order extended to a condition requiring the tenant to abandon its section 122 notice.
(3) When making a suspended possession order under the 1985 Act, it was open to the court, on a fair reading of section 85, to include a “proleptic” provision for the order to be discharged in the event of the tenant paying off all the arrears and costs: Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594; [2002] HLR 22; [2007] 19 EG 140 (CS) not followed. A former tenant would not therefore incur the inconvenience and expense of applying to discharge the order if he or she did not want to remain a tolerated trespasser indefinitely. The landlord would not be prejudiced since the court could revisit the provision at its behest, on an application for a warrant of possession, if the tenant did not comply with the terms of the suspension. Further, it was open to the court, when making such a provision, to specify conditions of discharge that were different from the terms of suspension: Payne v Cooper [1958] 1 QB 174 and Sherrin v Brand [1956] 1 QB 403 considered. This would enable a court to provide for the discharge of a suspended possession order when all arrears and costs had been paid, even though the terms of the suspension had not been strictly complied with because, for example, some of the payments were late. Where no proleptic discharge provision was included in a suspended possession order, a tenant who failed to comply with the terms of suspension could still, if faced with an application by the landlord for a warrant for possession, apply to the court for relief, whereupon the court could suspend or discharge the warrant or vary the order. The tenant could likewise make such an application in cases where, instead of a proleptic discharge provision, it was provided that the possession order was not to be enforced once all arrears and costs had been paid: Swindon Borough Council (formerly Thamsesdown Borough Council) v Aston [2002] EWCA Civ 1850; [2003] 2 P&CR 22; [2003] 02 EG 104 (CS) not followed.
Jan Luba QC and Adam Fullwood (instructed by Keoghs & Nicholls, Lindsel & Harris, of Altrincham) appeared for the appellant in the first appeal; Andrew Arden QC and Iain Colville (instructed by the legal department of Islington London Borough Council) appeared for the appellant in the second appeal; Richard Drabble QC and Miles Croally (instructed by Sharpe Pritchard) appeared for the appellant in the third appeal; Edward Bartley Jones QC and Michael Singleton (instructed by Anthony Collins Solicitors LLP, of Birmingham) appeared for the respondent in the first appeal; Richard Drabble QC and Adrian Jack (instructed by Wilson Barca LLP) appeared for the respondent in the second appeal; Ashley Underwood QC and Catherine Rowlands (instructed by Prince Evans) appeared for the respondent in the third appeal; Christopher Baker (instructed by the Treasury Solicitor) appeared for the intervener in the first and third appeal.
Sally Dobson, barrister
