Burrows v Brent London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Browne-Wilkinson,Lord Keith of Kinkel,Lord Griffiths,Lord Jauncey of Tullichettle,Lord Steyn |
| Judgment Date | 31 October 1996 |
| Judgment citation (vLex) | [1996] UKHL J1031-2 |
| Court | House of Lords |
| Date | 31 October 1996 |
[1996] UKHL J1031-2
House of Lords
Lord Browne-Wilkinson
Lord Keith of Kinkel
Lord Griffiths
Lord Jauncey of Tullichettle
Lord Steyn
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
This appeal raises a question as to the rights of a tenant of a dwelling house let by a local authority. Under Part IV of the Housing Act 1985 such tenancy is a "secure tenancy." A landlord cannot terminate a secure tenancy otherwise than by obtaining from the court an order for possession. Local authority landlords often obtain an order for possession against a secure tenant but then agree with the tenant that, whilst certain conditions are observed, the order will not be executed. The question is whether such an agreement operates so as to create a new secure tenancy which can only be terminated if the landlord obtains a further order from the court.
On 6 August 1984 the London Borough of Brent ("Brent") granted a tenancy of the basement and ground floor flat at 28, Oxford Road, London, NW6 jointly to the respondent, Miss Burrows, and her husband Richard Allen. In January 1986, Mr. Allen left the premises leaving Miss Burrows with her children. She fell behind with her rent.
On 29 January 1992 Brent obtained a final order for possession against Miss Burrows and Mr. Allen in the Willesden County Court. The order directed that the plaintiff should recover the sum of £2,427.63 being arrears of rent and costs. It further ordered "that the defendant do give the plaintiff possession of the said land on 12 February 1992." Thus, the order was not suspended: it was an immediate order for possession on 12 February.
On 5 February 1992 Brent came to an arrangement with Miss Burrows which was recorded in writing. It was made on a form which was designed for use by tenants prior to a possession hearing. The memorandum of the arrangements stated:
"I acknowledge that there are arrears of £2,313.41 on my rent account as at 27.1.92 …I understand that in those circumstances the London Borough of Brent will seek a possession order and judgment for the full amount of the arrears from the County Court … I agree to pay the rent charge of £2.67 due every week and, in addition, to reduce the arrears by regular instalments of £3.00 per week.
[There was then a section of the document which was only applicable when the document was to be signed before an order was made which was crossed out]
If payments cease or are irregular the Council will seek to evict."
Miss Burrows failed to make the payments in accordance with the agreement of 5 February 1992. Brent issued a warrant for possession informing her that she would be evicted on 8 June 1994. Miss Burrows moved out on 7 June. The order was executed. She returned on 8 June 1994 to find herself locked out and the premises boarded up. She thereupon applied to the Willesden County Court seeking to have the bailiff's warrant and the possession order set aside but those proceedings were dismissed.
On 4 July 1995 Miss Burrows commenced this action seeking a declaration that she remained a tenant and damages for unlawful eviction. She also sought a mandatory injunction to be allowed back into the premises. At the heart of her case was the contention that the effect of the arrangements made on 5 February 1992 was to create a new tenancy or licence by operation of law. By his judgment of 19 August 1994 His Honour Judge Finestein Q.C. agreed with Miss Burrows' submissions and ordered her re-instatement. He made the declaration and injunction asked and referred the matter to the district judge for an assessment of damages.
In the course of his judgment, the judge found that:
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(1) Miss Burrows understood, and this was part of the express agreement, that eviction would be a penalty if she was in default;
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(2) It was not contemplated by her that when she entered into the arrangement on 5 February she was entering into a tenancy;
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(3) When she left the premises on 7 June 1994 it was not her state of mind that a new tenancy had come into being as a result of the arrangement of 5 February 1992.
Brent appealed to the Court of Appeal (Butler Sloss, Otton and Auld L.J.J.) (1995) 27 H.L.R. 748 who dismissed the appeal. Brent appeal to your Lordships' House.
Sections 79, 80 and 81 of the Act of 1985 define the conditions which have to be satisfied in order to constitute a "secure tenancy." Those conditions were satisfied in the present case. It is important to note that under section 79(3) the provisions of Part IV of the Act apply to a "licence to occupy a dwelling house … as they apply in relation to a tenancy." Therefore nothing in this case turns on the distinction between a licence and a tenancy; if, by making the agreement not to enforce the possession order, the local authority is to be taken to have granted a licence for the tenant to continue in occupation the position will be just the same as if they had granted a tenancy.
Section 82 provides as follows:
"(1) A secure tenancy which is either — ( a) a weekly or other periodic tenancy, or ( b) a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under sub-section (3). (2) 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. (3) … ."
It is important to note that the secure tenancy ends, not on the date on which possession is in fact given up, but on the date on which the order requires the defendant to give up possession.
Section 84 provides that the court shall not make an order for possession save on one of the grounds mentioned in Schedule 2 which include non-payment of rent. In addition, in the case of non-payment of rent the court must also be satisfied that it is reasonable to make the order. An order for possession cannot be made unless the ground on which an order is to be sought has been specified in a prior notice to be served on the tenant: sections 83 and 84(3).
Section 85 is central to the argument in this case. It provides:
"(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy [for the non-payment of rent] 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. (3) on such an adjournment, stay, suspension or postponement the court — ( a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and b) may impose such other conditions as it thinks fit. (4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession. (5) …"
The argument for Miss Burrows, which the Court of Appeal accepted, is as follows. The order of 29 January 1992 directed that possession should be given on 12 February 1992. Therefore, by virtue of section 82(2), Miss Burrows' original secure tenancy terminated on that day. Yet, under the agreement of 5 February 1992, Miss Burrows remained in occupation of the house paying a "rent charge" of £2.67 per week for such occupation. That agreement could not be effective to alter or vary the order itself, but could only take effect as an agreement to permit Miss Burrows to stay on after her existing tenancy had terminated on 12 February 1992. This right of continued occupation can only be explained on the ground that the agreement conferred on Miss Burrows a new right of occupation, either by way of a new tenancy or as a licensee, it mattered not which. If it was a new tenancy, it was a new secured tenancy; if it was only a licence, by virtue of section 79(3) Miss Burrows enjoyed the same protection as if it were a tenancy. In either event, the new secure tenancy or new licence could only be terminated by Brent applying to the court for a further court order terminating the new right: section 82(1).
The argument for Brent before the Court of Appeal was that the agreement of 5 February was simply an agreement by Brent not to execute the possession order, provided that Miss Burrows complied with the agreed conditions. As the judge's findings demonstrated, Miss Burrows never intended that the agreement should create a tenancy and it was absurd to imagine that Brent, by granting Miss Burrows an indulgence in relation to a possession order which they had only just obtained, should have intended to create a new right of occupation necessitating a further application to the court in order to obtain possession. In the period during which Brent agreed to forbear from enforcing the order, Miss Burrows was a mere "tolerated trespasser."
The Court of Appeal, whilst accepting that the crucial factor in determining Miss Burrows' rights was the intention of the parties, rejected Brent's contention on the ground that it gave rise to manifest absurdities. At the rate for payment of arrears stipulated by the agreement of 5 February 1992, it would have taken Miss Burrows 14 years to pay them off during which time, if the argument of Brent was correct, she would be a mere trespasser. As a trespasser she would enjoy none of the rights of a tenant. Thus she...
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