Dunn and another v Bradford Metropolitan District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lady Justice Hale,Lord Justice Waller |
| Judgment Date | 31 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1137 |
| Docket Number | Case No: B2/2002/0415 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2002 |
[2002] EWCA Civ 1137
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(HH Judge Cockcroft) &
ON APPEAL FROM LEEDS COUNTY COURT
(HH Judge Grenfell)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Waller
Lord Justice Chadwick and
Lady Justice Hale
Case No: B2/2002/0415
B2/2002/2498
Mr J Luba QC & Mr J Carroll (instructed by Messrs Davies Gore Lomax) for the Appellants, Mr & Mrs Dunn
Mr C Dodd & Mr A Pema(instructed by Bradford Metropolitan District Council) for the Respondent, Bradford MDC
Mr C Dodd & Mr A Pema (instructed by Leeds City Council Legal Services) for the Appellant, Leeds CC
Mr A Offer & Mr B Cox (instructed by Messrs Davies Gore Lomax) for the Respondents, Mr & Mrs Marston
Part IV of the Housing Act 1985 provides security of tenure for those who occupy local authority housing under tenancies which are "secure tenancies" within the meaning of section 79(1) of that Act. A secure tenancy cannot be brought to an end by the landlord except by obtaining an order of the court—see section 82(1) of the Act. The court may not make an order for possession of a dwelling house let under a secure tenancy unless one or more of the grounds set out in Schedule 2 to the Act has been made out – see section 84(1) of the Act. And, if it does make an order for possession, the court may stay or postpone the execution of the order, or postpone the date for possession, for such period or periods as it thinks fit – see section 85(2) of the Act.
These two appeals raise a common question as to the court's power, under section 85(2)(b) of the 1985 Act, to postpone the date for possession under an existing possession order in circumstances where (i) the former tenancy determined in accordance with the terms of that order, (ii) the former tenant continued in possession of the dwellinghouse for some time after the determination of the tenancy with the knowledge and acquiescence of the local authority, but (iii) the former tenant then gave up possession to the local authority without there having been execution of a warrant of possession and (iv) the application to postpone the date for possession is made after possession of the property has been given up.
It is not suggested that, if the court has that power, it would be appropriate, in the circumstances which give rise to the present appeals, for the dates to which possession under the existing orders should be postponed to be later than the respective dates on which possession was given up. The context in which the question arises is that, in each case, the tenant seeks to hold the local authority responsible for alleged failure to keep the dwelling house in repair during the whole of the period that the tenant remained in possession; and, for that purpose, seeks to rely on the tenant's covenants under the former tenancies. It is common ground – for reasons which I shall explain – that, if the power under section 85(2)(b) of the 1985 Act exists and were exercised so as to postpone the dates for possession under the existing orders to the dates on which possession was given up, the former tenancies would then be treated as having continued after the dates upon which they would otherwise have come to an end under the existing orders; with the consequence that the tenants' covenants would be enforceable in respect of whole of the period during which the former tenants remained in possession.
The question is of some general importance; in that the circumstances which have given rise to the present appeals are not unusual. It is a question which needs to be resolved in this Court. In the first of the appeals now before us – Dunn v Bradford Metropolitan District Council– His Honour Judge Cockcroft, sitting in the Bradford County Court, held that there was no power to postpone the date for possession under section 85(2)(b) of the 1985 Act on an application made after possession had already been given up. In the second of the two appeals – Marston v Leeds City Council– His Honour Judge Grenfell, sitting in the Leeds County Court, reached the opposite conclusion. He declined to follow the decision of Judge Cockcroft; preferring, instead, what he took to be the approach of His Honour Judge Collins, sitting in the Wandsworth County Court, in Clements v Lambeth London Borough Council.
The position of a tenant, or former tenant, who remains in possession under Part IV of the Housing Act 1985
As I have said, a secure tenancy cannot be brought to an end by the landlord except by obtaining an order of the court; and, on the making of an order for possession, the court may stay or postpone the execution of the order, or postpone the date for possession. Section 85(3)(a) of the 1985 Act requires the Court, when making an order for possession under which the date for possession is postponed, to impose conditions with respect to the payment by the tenant of current rent, and of arrears of rent (if any), unless it considers that to do so would cause exceptional hardship to the tenant. Where such an order is made the tenancy continues until the date on which the tenant is to give up possession pursuant to the order – see section 82(2) of that Act.
It follows that, where an order for possession is made on terms that the date of possession is postponed for such period as the tenant makes the payments of arrears and current rent required under the order, the tenancy does not come to an end until the tenant fails to make the payments required. But, on such failure, the tenancy determines – see Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, 1430H – 1431A, and Burrows v Brent London Borough Council [1996] 1 WLR 1448, 1453F, 1458D. If, thereafter, the former tenant continues to occupy the dwelling house, his status is that of a trespasser. Even if, as frequently happens in practice, he occupies the dwellinghouse with the consent of the local authority and makes payment in respect of his occupation equal to the amount of the rent payable under the former tenancy, he does not do so as tenant. His former tenancy does not revive without a further order of the court; and the circumstances are not such, without more, as to give rise to the implication of a new tenancy. His status during such a period of occupation was described by Lord Browne-Wilkinson in Burrows v Brent London Borough Council, at page 1455E, as that of a "tolerated trespasser". He is a trespasser because he has no legal right, as against the local authority as owner of the dwelling house, to be in possession. He is tolerated in the sense that the local authority are content – indeed, may well have agreed—not to evict him for so long as he makes payments in respect of his occupation. But, while he remains in occupation during what Lord Browne-Wilkinson described, again in Burrows v Brent London Borough Council, at p. 1454H-1455A, as "a period of limbo", the local authority is not subject to the obligations formerly imposed upon it as landlord under the tenancy. The former tenancy having come to an end, the mutual covenants which it contained have fallen away and cannot be enforced by either party – see Lambeth London Borough Council v Rogers [2000] LGR 191, 200g-h.
The former tenant who remains in possession after his secure tenancy has come to an end – that is to say, after the date upon which he was to give up possession in pursuance of the order for possession – cannot be evicted without due process of law – see section 3 of the Protection from Eviction Act 1977. An order for possession made in the county court is enforced by the issue of a warrant of possession under what is now CCR 26.17 in Schedule 2 of the Civil Procedure Rules – formerly Order 26 rule 17 in the County Court Rules 1981. A warrant of possession in the prescribed form (Form N.49) requires the bailiff of the court to give to the claimant possession of the land to which it relates. Execution of such a warrant is a process carried out by the court through its bailiff. But there is nothing in the 1977 Act, or in the rules of court, which precludes the former tenant from giving up possession to the claimant before any warrant of possession has been issued; or before a warrant has been executed by the bailiff.
Section 85(2) of the 1985 Act, to which I have already referred, provides that on the making of the order for possession or at any time before the execution of the order the court may (a) stay or suspend the execution of the order for possession of a dwelling house let under a secure tenancy or (b) postpone the date of possession. On an application made under that section in circumstances where the court has made an order for possession and the date upon which the tenant is to give up possession under that order has passed, the court has a choice. It may stay or suspend the issue of the warrant; or (if the warrant has been issued) stay or suspend the execution of the warrant by the bailiff. Or it may postpone the date of possession. And the court may do any or either of those things at any time before the warrant of possession has been executed.
The effect of an order, made under section 85(2)(b) of the 1985 Act, postponing the date of possession is that the original order for possession must thereafter be read as if the date on which the tenant is to give up possession in pursuance of that order is the postponed date fixed by the further order. So, in the ordinary case where the postponed...
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