Housing — Secure tenancy — Claim for possession — Order for possession suspended on condition tenant complying with terms of tenancy — Tenant continuing in occupation as tolerated trespasser — Landlord issuing new proceedings for possession on basis that occupation no longer tolerated — Whether issue of new proceedings permissible — Whether warrant exercisable under the original order for possession — Housing Act 1985, ss 82(2), 85(2).
London & Quadrant Housing Trust v Ansell
CA: (Chadwick, Lloyd LJJ and Stanley Burnton J): 19 April 2007.
{Where, pursuant to ss 82 and 85 of the Housing Act 1985, a former secure tenant, following a possession order made against her, remained in occupation as a tolerated trespasser but failed to comply with the conditions imposed under the order the proper course was for the landlord to recover possession by issuing fresh proceedings. It was not appropriate to issue a warrant to recover possession under the original order to enable the tenant to claim protection under s 85 (2) of the Housing Act 1985.
The Court of Appeal so stated dismissing the appeal of the tenant, Carol Ansell also known as Carol Marley, from the decision of Judge Birtles made on 22 September 2006 sitting at the Mayor’s and City of London County Court ordering possession of property at 39, Hannay Lane, Crouch End, London N8 to her social landlord, London & Quadrant Housing Trust ,on the basis that the original possession order did not survive. That order was made on 19 February 2001 on terms that the tenant pay all arrears of rent by 19 March 2001.The tenant settled the arrears after that date while continuing in occupation.
CHADWICK LJ said that the February 2001 order ceased to be enforceable by issue of a possession warrant; nor could the court revive the secure tenancy by an order under s 85(4). The court could not entertain an application under s 85(2) staying or suspending execution ,or postponing possession. There would be no purpose in staying or suspending, and there was no date to which the giving of possession could sensibly be postponed: there had been no date since 26 October 2004 on which the tenant could be required to give possession on the ground relied on in the earlier proceedings. The position was indistinguishable from that in Swindon B C v Aston [2003] HLR 42. The court’s powers under s 85, although formerly exercisable in respect of enforcement of the original order, did not remain so when the present proceedings were commenced. The tenant argued that if it were open to the landlord to issue and execute the warrant it would be wrong to allow the protection afforded by s 85(2) to be circumvented by proceedings otherwise than under that order. But since the s 85 powers no longer remained exercisable that argument could not be advanced. There was no legislative policy which would be defeated by allowing the landlord to commence and pursue the present proceedings. Here the landlord claimed possession as freehold owner in circumstances where (i) the secure tenancy had ended, (ii) there was no possibility of its being revived by a court order and (iii) no other tenancy had arisen from the parties’ conduct. It was true that the secure tenancy had come to an end because the date on which the tenant was to give up possession under the order was in March 2001. But the tenancy came to an end then because that was what s 82(2) of the 1985 Act provided. The landlord relied on the facts that the order was made and the date on which possession was to be given was March 2001 in order to establish that the secure tenancy had come to an end; but that was not at all the same as seeking to enforce the order.
LLOYD LJ gave concurring judgment and STANLEY BURNTON J agreed with the judgment of Chadwick LJ.
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