Brent London Borough Council v Knightley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ALDOUS,LORD JUSTICE SCHIEMANN,LORD JUSTICE HIRST |
| Judgment Date | 26 February 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0204-7 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 1997 |
| Docket Number | CCRTI 96/087/H |
[1997] EWCA Civ J0204-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
(His Honour Judge Maher)
Royal Courts of Justice
Lord Justice Hirst
Lord Justice Aldous
Lord Justice Schiemann
CCRTI 96/087/H
and
MISS F. MORRIS (instructed by Messrs Alexander & Partners, London, NW10) appeared on behalf of the Appellant/Second Defendant.
MR. B. McGUIRE (instructed by Messrs T V Edwards & Co., Harlesden, London, NW10) appeared on behalf of the Respondent/Plaintiff.
Miss Janet Knightley, the appellant, was the daughter of the tenant of property owned by the London Borough of Brent (the respondent). Upon her mother's death she claimed the right to succeed to the tenancy of that property pursuant to section 89 of the Housing Act 1985. The respondent refused to accept that claim upon the ground that, at the date of the death of the appellant's mother, there was no tenancy to which the appellant could succeed as it had been terminated pursuant to an order made for possession for non-payment of rent. His Honour Judge Maher, sitting in the Willesden County Court, accepted that submission in his judgment of 26th March 1996.
The relevant statutory provisions are contained in the Housing Act 1985. Section 82(2) is in this form:
"Where the landlord obtains an order for the possession of the dwelling house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order."
Section 85(1):
"Where proceedings are brought for possession of a dwelling house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.
(2) On the making of an order for possession of such a dwelling house on any of those grounds, or at any time before the execution of the order, the court may -
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks fit."
….
(5) "Where proceedings are brought for possession of a dwelling house which is let under a secure tenancy and -
(a) the tenant's spouse or former spouse, having rights of occupation under the Matrimonial Homes Act 1983, is then in occupation of the dwelling-house, and
(b) the tenancy is terminated as a result of those proceedings,
the spouse or former spouse shall, so long as he or she remains in occupation, have the same rights in relation to, or in connection with, any adjournment, stay, suspension or postponement in pursuance of this section as he or she would have if those rights of occupation were not affected by the termination of the tenancy."
Section 87:
"A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either -
(a) he is the tenant's spouse, or
(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
unless, in either case, the tenant was himself a successor, as defined in section 88."
In about 1971 the appellant started to live at 155 Brentfield Road which is a property owned by the London Borough of Brent. The property was subsequently let to her father. Her father died on 21st May 1979 and on 4th June 1979 a tenancy was granted to the appellant's mother. She failed to pay the rent due and on 31st May 1989 an order was made that there be judgment for possession which should not be enforced for 28 days in any event and for so long thereafter as the defendant punctually paid to the plaintiff the arrears of rent by instalments of £2.50 per week in addition to the current rent. The appellant's mother failed to pay between 29th May 1989 and January 1991. The respondents applied for a warrant for possession, but it was suspended on terms that the appellant's mother paid the rent plus £2.50 per week so as to pay off the arrears. She paid until the middle of March 1992. Thereafter, there were only sporadic payments, and in July 1993 the respondents again applied for a warrant for possession. The appellant's mother again applied to suspend the warrant. By order dated 9th September 1993 District Judge Steel suspended the warrant on terms that the late Mrs Knightley paid the current rent plus £10 per week to pay off the arrears of rent, the first payment to be by 16th September 1993. The appellant's mother complied with that order until January 1994 when further breaches occurred. On 6th September 1994 the appellant's mother died. Thereafter the appellant applied to the respondents to succeed to the tenancy of the property. By letter dated 22nd September 1994 the respondents informed the appellant that she could not succeed to the tenancy as no tenancy existed at the date of her mother's death. Upon advice, the appellant maintained her position and refused to vacate the property. The respondents then applied for a warrant for possession. The appellant applied to be joined in the application and the proceedings came before District Judge Cohen, who ordered that she be joined as a second defendant in the action, that the warrant for possession should be stayed and that the application by the plaintiffs for leave to issue the warrant for possession against the second defendant should be refused.
The London Borough of Brent appealed. The appeal came before His Honour Judge Maher. He concluded that there was no lease in existence at the time that the appellant's mother died and therefore there was nothing to which the appellant could succeed. He therefore ordered that the order of the District Judge should be set aside, that Miss Knightley's application for leave to be joined as a second defendant should be refused, and that the plaintiff should have leave to issue the warrant for possession out of time forthwith. The appeal is against that order.
Since the judgment of His Honour Judge Maher of 26th March 1996, the law has been clarified by the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448. In that case Mrs Burrows...
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