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Recent Cases and Legislation

 

Housing Law Updates

Tolerated Trespasser

Click on the links below to see recent cases in each area of law:

 

Knowsley v White; Honeygan-Green v LB Islington; Porter v Shepherds Bush – 10/12/08

[2008] UKHL 70

Lord Hoffmann, Lord Walker, Lord Brown, Lord Mance, Lord Neuberger

House of Lords considers the issue of the Tolerated Trespasser

In these conjoined appeals various issues were considered:

(1) Where a suspended order for possession was made under HA 88, the date when the assured tenancy came to an end;

(2) Whether a court, when making a suspended possession order under HA 85, could proleptically direct that the order could be discharged once its terms had been complied with;

(3) Whether a court could take that step even if the terms of suspension had not been strictly complied with;

(4) Where a court had granted a suspended possession order under HA 85 without a proleptic discharge provision, whether a tenant could seek a discharge or variation of the order where he had not complied with the terms of suspension but had paid off all arrears and costs

(5) Whether the right to buy under HA 85 revived with the discharge of a suspended possession order

Held:
(1) An assured tenancy subject to a suspended possession order did not come to an end until possession was delivered up.

(2) Under s.85 HA 85 it was open to a court to include a proleptic discharge provision in a suspended order for possession

(3) s.85(4) HA 85 gave the court the power to discharge the order if the conditions were met, but also the power to consider discharge of the order even if the strict terms of the order had not been complied with

(4) A Tenant could seek a discharge or variation of a suspended possession order even where the order provided that it could not be enforced once all arrears and costs were paid and the tenant had breached the terms of suspension yet paid all arrears and costs. The decisions of Marshall v Bradford and Swindon BC v Aston were wrong and overruled.

(5) A revival of a secure tenancy also revived the Tenant's right to buy

 

Jones v Merton LBC – 16/06/2008

[2008] EWCA Civ 660

Arden LJ, Wall LJ, Wilson LJ

A former tenant's liability to pay mesne profits ceased when he gave up possession of the property, not when he notified the landlord he was no longer in possession

The appellant (T) was a former secure tenant who had become a tolerated trespasser following a possession order in February 2005. In October 2005, having already moved elsewhere, T requested a transfer and, in November 2005, T moved his belongings from the property. T was finally transferred in June 2006. The LA sought mesne profits from October 2005 until July 2006, when they finally were notified of T's leaving the property.

Held : A tolerated trespasser is under no obligation to notify the landlord when he has given up possession. His liability for mesne profits ends when he gives up possession, not when he notifies the landlord of the same. Nothing in HA 85 suggests that notification is required and, for possession to end, it is merely necessary to show an intention to give up possession.

In the instant case, T gave up possession when he moved his belonging from the property and his liability to pay mesne profits therefore ended in November 2005.

Porter v Shepherds Bush Housing Association – 19/03/2008

[2008] EWCA Civ 196

Pill LJ, Sedley LJ, Longmore LJ

A secure tenancy, subject to a suspended possession order, did not revive by virtue of the late payment of rent arrears in full

The appellant (A) held a secure tenancy of a property. A suspended order for possession was granted owing to arrears of rent. A failed to comply with the terms of the suspended possession order and further arrears accrued. Some years later, A paid off the rent arrears in full. A thereafter applied under s.85(4) HA 85 for the suspended possession order to be discharged as he no longer owed arrears of rent; the Judge declined to revive the tenancy, relying on the cases of Swindon BC v Aston [2003] HLR 42 and Marshall v Bradford MDC [2002] HLR 22 . On appeal, A argued that these decisions were decided per incuriam as the earlier authority of Payne v Copper [1958] 1 QB 174 had not been cited.

Held : When A failed to comply with the suspended possession order, the secure tenancy ended and A became a tolerated trespasser. A could have potentially relied on s85(2) HA 85 to postpone the date of possession or s85(4) to discharge or rescind the possession order. In Marshall it was held that when the arrears were paid in full the order ceased to be enforceable but the secure tenancy did not revive. In Aston it was held that once the arrears were paid off under the terms of the suspended possession order the (ex)-tenant could no longer apply to postpone the date of possession under s85(2) as the order was no longer enforceable, nor could he apply to rescind the order under s85(4) as the conditions had not been complied with.

Payne v Cooper differed from the instant case as that case concerned converting an unconditional order into a conditional one; that situation could not arise under s85.

Accordingly, Marshall and Aston had been correctly decided and should be followed.

London & Quadrant Housing v Ansell – 19/04/2007

[2007] EWCA Civ 326

Chadwick LJ, Lloyd LJ, Stanley Burnton J

Following the payment of arrears of rent under the terms of a suspended possession order the order was no longer enforceable and the court's powers under s85 HA 85 were no longer exercisable. Consequently, a fresh possession claim against the former tenant was valid and lawful.

The Court of Appeal so held in dismissing the appeal of (A) against a decision ordering her to give up possession to the landlord (L). A had been a secure tenant against whom a suspended possession order had been made on terms that A paid the rent areas and costs by instalments. A breached the terms of the order but subsequently repaid the arrears and costs, remaining in occupation as a tolerated trespasser. Five years later, L sought possession and issued fresh proceedings. A claimed that the proceedings were misconceived and were an attempt to circumvent the court's powers under s82(2) HA 85. A claimed that L should have instead sought to enforce the earlier possession order.

Held : As the terms of the original order had been complied with it followed that the first possession order was not thereafter enforceable and the court's powers under s85 were therefore not exercisable. As such, the new proceedings were not misconceived as L was not seeking to enforce the original order. The matter may have been different if it had been open to L to enforce the first possession order as it would be wrong to allow the protection afforded by s85(2) to be circumvented in this way.

Islington LBC v Honeygan-Green – 25/05/2007

[2007] EWHC 1270 (QB)

Nelson J

A tenant's right to buy ceased to be exercisable following her failure to pay rent and an order for possession of a secured tenancy

The Court so held in allowing an appeal by the LA against an order requiring it to convey a long lease to H. H was a secure tenant who was consistently late in paying her rent. Proceedings were issued and an order for possession, suspended subject to repayment of arrears, was made. H again failed to pay her rent and the LA informed her that her secure tenancy had ended and that she was now a tolerated trespasser.

Held : H's tenancy was terminated by the original order and she was obliged to give up possession of the property. Consequently, her right to buy could not be exercised in accordance with section 121 of the HA 1985. Further, policy reasons required a strict interpretation of this section to the same effect.

Knowsley Housing Trust v Julie White – 02/05/2007

[2007] EWCA Civ 404

Buxton LJ, Longmore LJ, Sir Martin Nourse

An assured tenancy in which a possession order was made but suspended on terms using form N28 was deemed to have expired on the last date for possession, following which the occupant became a tolerated trespasser.

The Court of Appeal so held in dismissing an appeal by the tenant (W) seeking a declaration that she was still an assured tenant of the property. W, an assured tenant, fell into arrears of rent and proceedings were brought for possession. The Judge ordered that the tenant must give up possession on 6 July 2004 but suspended enforcement of the order provided the arrears were repaid. The Judge used the standard county court form N28. W subsequently wished to exercise her right to buy the property which the landlord disputed.

Held : (1) When a court used form N28 to order possession of property held under an assured tenancy but suspended its execution, the tenancy ended on the last date for possession of the property. As with a secure tenancy following Harlow DC v Hall, the suspension related to the enforcement of the order as opposed to postponing the date of possession itself.

(2) The court should adopt the approach in Bristol CC v Hassan; namely order the delivery of possession, but postpone the date for delivery until a date to be fixed so as to protect the assured tenant's rights.

 

 

Knowsley Housing Trust v White – 14/09/2006

LTL 6/11/2006

Judge Mackay

An occupier who allegedly breached a suspended possession order could not exercise a right to buy as she was no longer an assured tenant.

The Court so held in refusing an application by the Defendant (D) who had been an assured tenant of a property but had defaulted on payments and against whom a suspended possession order had been made, enforceable if D failed to pay the rent arrears. The landlord alleged that the rent arrears had not been paid but D applied to exercise her right to buy the property in any event.

Held : Section 9 of the Housing Act 1988 made reference to ‘mesne profits', demonstrating that a tenancy could end before the giving up of possession. Accordingly, the tenancy determined prior to the execution of the suspended possession order, and D was therefore not a tenant at the time of her application.

Bristol City Council v Hassan; Bristol City Council v Glastonbury – 23/05/2006

[2006] EWCA Civ 656

CA (Civ Div) Brooke LJ (V-P), Dyson LJ, Jacob LJ

A Postponed Possession Order is possible under s.85 of the Housing Act 1985. The Court, when making a possession order, is not obliged to set out a date for possession on the order, but is entitled to set out a date for possession on the basis that this date would be postponed so long as the tenant keeps to the conditions in the order. This has the effect of keeping the tenancy alive and means that the tenant will not automatically become a tolerated trespasser

The Court of Appeal so held in allowing two appeals brought by tenants (T) of Bristol City Council (L) in light of the decision of Harlow DC v Hall. L sought suspended possession orders against T, two secure tenants in arrears with their rent. T, concerned that their status would amount to ‘tolerated trespassers' following the date for possession in the order asked the Court to make an order that T should give up possession on a date to be fixed by application of L. The District Judges decided that they were required to fix a date for possession on the face of the order and made orders in the usual form. T appealed against these decisions

Held:
(1) A Judge is not obliged to set out an absolute date for possession on the face of the order. As such, it is lawful for the judge to make an order which sets out a date for possession but provides that the date will be postponed and the tenancy will continue so long as the conditions set out in the order continue to be satisfied. By these actions, the court would be postponing the date of possession for a fixed period in the first instance and thereafter for such period as the tenant complies with his obligations under the order. This is a natural fit with the wording of s85(2).

(2) However, it is not appropriate to require a further hearing to determine the date for possession due to the attendant expense and delay this may involve. It would be sufficient for possession to be postponed on the terms that, if a landlord wishes a date to be fixed, it must write to the tenant giving details of the current arrears and its intention to request a date to be fixed at least 14 days before making the application. If the tenant does not respond, or if the landlord wishes to apply for a date to be fixed notwithstanding the tenant's response, the landlord will then be at liberty to apply to the court on a "without notice" basis requesting a date to be fixed. This may be determined by the court on the papers without a hearing. With its application the landlord must submit to the court a copy of its letter (and the tenant's response, if any), together with a copy of the rent account since the date of the order postponing possession. Other evidence will seldom be required.

(3) In the present appeals, the judges fettered their discretion too narrowly and the claims would be remitted to the County Court to determine what, if any, terms of postponement of possession were appropriate.

Comment: The Court of Appeal has reacted quickly to concerns following Harlow DC v Hall and given thorough guidance to courts, practitioners and landlords on the preferred form of ‘Postponed possession orders'. The new scheme is to be welcomed insofar as it protects tenants from falling into the ‘tolerated trespasser' trap, while also remaining an efficient process for landlords who may obtain a date for possession without the need for a second hearing if the tenant fails to abide by the conditions. The one regret is that the Judgment fails to provide any hope or clarification of status for the thousands of ‘tenants' who remain ‘tolerated trespassers' following the Harlow DC v Hall decision.

Harlow District Council v Hall – 28/02/2006

[2006] EWCA Civ 156

CA (Civ Div) Chadwick LJ, Sir Paul Kennedy, Sir Andrew Morritt C

A Suspended Possession order against a secure tenant under s85(2) Housing Act 1985 was not a remedy against the property of that tenant that was precluded by s258(3) Insolvency Act 1986

The Court of Appeal so held in dismissing the appeal of a tenant (T) who sought to appeal against the refusal to discharge a possession order made in favour of the landlord (L). The possession order provided that T should give up possession on 9 February 2005 but that the order would not be enforced as long as T paid L the outstanding rent arrears. On 10 February 2005 a bankruptcy order was made against T, following which he sought to discharge the earlier possession order.

Held: The possession order required T to give up possession on or before 9 February 2005 whether or not the conditions for payment had been complied with. The possession order merely prevented L from enforcing the order provided T kept to the conditions. As such, the maintenance of the possession order did not constitute a remedy against T's property precluded by s258(3) IA 1986. T was therefore not entitled to discharge the order for possession.

Comment: The significance of this case cannot be understated. The frequently-used suspended possession order (in form N28) does not postpone the date of possession of the property; rather it merely suspends the execution of the order, meaning that possession is ordered from the date specified in the order, but cannot be enforced by the Landlord provided the Tenant keeps to the conditions. As such, any ‘tenants' subject to suspended possession orders are now seen in the eyes of the law as ‘tolerated trespassers'.

 

 

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