London and Quadrant Housing Trust v Ansell
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Lloyd,Mr Justice Stanley Burnton |
| Judgment Date | 19 April 2007 |
| Neutral Citation | [2007] EWCA Civ 326 |
| Docket Number | Case No: B2/2006/2242 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 April 2007 |
[2007] EWCA Civ 326
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S & CITY OF LONDON COUNTY COURT
(His Honour Judge Birtles)
6CK10379
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Lloyd and
Mr Justice Stanley Burnton
Case No: B2/2006/2242
Mr Matthew Feldman (instructed by Clifford Watts Compton of 67 Stoke Newington Road, London N16 8AG) for the Appellant
Ms Zia Bhaloo (instructed by Trowers & Hamlins, Sceptre Court, 40 Tower Hill, London EC3N 4DX) for the Respondent
Hearing date: 1 March 2007
This is an appeal from an order made on 22 September 2006 by HH Judge Birtles, sitting at the Mayor's and City of London County Court, in proceedings brought by London and Quadrant Housing Trust (to which I shall refer as “the Trust”) against Ms Carol Ann Ansell (also known as Carol Ann Marley). The judge ordered Ms Ansell to give up possession of her dwelling house at 39 Hannay Lane, Crouch End, London N8 on or before 20 October 2006. The order has not been enforced, pending the outcome of this appeal.
The Trust is a registered social landlord. It is the owner of the property at 39 Hannay Lane. It is common ground (i) that, from 8 September 1987 or thereabouts, Ms Ansell was in occupation of that property under a secure tenancy granted by the Trust and (ii) that that secure tenancy came to an end (in circumstances which I shall describe) in March 2001, following the breach of a suspended possession order made in the Clerkenwell County Court on 19 February 2001 in earlier proceedings between the same parties.
Notwithstanding the breach of the order made on 19 February 2001, Ms Ansell remained in occupation of the property. Housing benefit has been paid regularly. Although there is a small sum due from her in respect of arrears of rent/mesne profits, it is not for that reason that the Trust now seeks possession. Rather, it is said that she, her family and associates have behaved in a manner which has caused nuisance and annoyance to her neighbours and others in the vicinity of the property. The present proceedings include claims for orders under sections 1B and 1D of the Crime and Disorder Act 1998.
The present proceedings were commenced by a claim issued in Clerkenwell County Court on 10 February 2006. It should be said, at the outset, that the Trust commenced these proceedings because it took the view that, in the events which have happened, it was no longer possible to enforce the possession order made on 19 February 2001. It is common ground – and, if it were not, I would be minded to hold – that, if it were open to the Trust to issue and execute a warrant of possession under that order, the present proceedings would be misconceived. The proper course would be to proceed under that order: Civil Procedure Rules, schedule 2, CCR Order 26, rule 17. In proceedings under the order of 19 February 2001 the county court would have the extended discretionary powers conferred by section 85(2) of the Housing Act 1985.
The provisions in Part IV of the Housing Act 1985
In order to understand and address the issues raised by this appeal it is necessary to have in mind the statutory framework in relation to secure tenancies now contained in Part IV of the Housing Act 1985. A tenancy under which a dwelling house is let as a separate dwelling is a secure tenancy at any time when the conditions described as “the landlord condition” and “the tenant condition” are satisfied: section 79 of that Act. There is no dispute that those conditions were satisfied in respect of the tenancy granted to Ms Ansell in 1987: as I have said, the Trust is a registered social landlord.
Part IV of the 1985 Act provides security of tenure to a tenant in occupation under a secure tenancy. A secure tenancy cannot be brought to an end by the landlord except by obtaining an order for possession of the dwelling house – section 82(1) of the Act – save in circumstances (not here material) described in section 82(3). Section 83 contains provisions as to the notice which is to be served on the tenant before proceedings are commenced. Section 83A contains provisions as to the time (from service of the notice) within which proceedings are to be commenced. And section 84, read with schedule 2, sets out the grounds on which an order for possession may be made; and the requirements as to reasonableness and the availability of other suitable accommodation.
Where the landlord obtains an order for 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 82(2) of the 1985 Act. Section 85 of the Act confers on the court an extended discretion both as to the postponement of the date for possession and as to the stay or suspension of the order for possession. Subsections (2), (3) and (4) of section 85 are of relevance in the present context:
“85(2) On the making of an order for possession of such dwelling-house on any of those grounds [set out in Part 1 or Part III of Schedule 2], or at any time before the execution of the order, the court may –
(a) suspend or stay the execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks fit
(3) On any such 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.”
The effect of those provisions was explained by Lord Browne-Wilkinson in Burrows v Brent London Borough Council [1996] 1 WLR 1448, 1454H-1455A:
“A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may be revived by a further order of the court varying the date for possession.”
The reference, there, to the possibility that the “old tenancy … may be revived by a further order of the court varying the date for possession” is to the possibility that, on an application under section 85(2)(b) of the Act, made at any time before execution of the order for possession, the court may decide to vary the possession order by a further order postponing the date of possession: see Lambeth Borough Council v Rogers (1999) 32 HLR 361, 367. There is the further possibility that, on the tenant complying with the conditions imposed by an order made under section 85(2)(a) and (3), the court may discharge or rescind the order for possession: section 85(4) of the Act. In either case the original secure tenancy will revive.
Tolerated trespassers
In a case where the secure tenancy is brought to an end by an order for possession – that is to say, where the order specifies the date on which the tenant is to give up possession and the tenancy ends on that date pursuant to section 82(2) of the 1985 Act – the former tenant may, nevertheless, remain in occupation under the protection of an order, made under section 85(2)(a) and (3), staying or suspending execution of the order for possession on conditions. So long as the former tenant complies with the conditions, his continued occupation is not referable to any agreement with the former landlord: it is referable to the order staying or suspending execution on terms.
But what if the former tenant fails to comply with the conditions imposed by the order suspending or staying execution? He then ceases to enjoy the protection of the order which the court had made under section 85(2)(a) and (3) of the Act: he is in breach of that order. Nevertheless, it is not unusual to find that the former tenant remains in occupation with the agreement of the landlord: perhaps, on the same terms as those formerly imposed by the order made under section 85(2)(a) and (3) or (it may be) on varied terms. The question, then, is on what basis is the former tenant in occupation: is he there as tenant, as licensee or as trespasser?
Lord Browne-Wilkinson went on to consider that question in Burrows v Brent. The answer, he thought, was to be found by asking: what intention is to be imputed to parties who reach agreement as to the continued occupation of the (former) tenant during the limbo period? He said this ( ibid, 1455B-D):
“… In my judgment the agreement can and should take effect in the way that the parties intend, i.e. it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, i.e. from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute...
To continue reading
Request your trial
-
Lewisham London Borough Council v Malcolm
... ... terms of his tenancy so as to give Lewisham what was, in terms of housing law, an unanswerable claim to possession. To defeat that claim Mr Malcolm ... ...
-
Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
...only if the conditions have been complied with. So construed, the authorities create what in London & Quadrant Housing Trust v Ansell [2007] HLR 37, Chadwick LJ called a “trap” for former tenants who pay what the order requires without first making an application to vary the order by postpo......
-
Lewisham London Borough Council v Malcolm
...trespasser with all the attendant difficulties that concept brings: see generally the recent case of London & Quadrant HT v Ansell [2007] EWCA Civ 326 and, for example Loveland, Tolerated Trespasser: a Very Peculiar Legal Creature [2007] 123 LQR 455,Bright, The Concept of a Tolerated Tresp......
-
Vicarage Gate Ltd v First Secretary of State
... ... Royal Courts of Justice Strand, London, WC2A 2LL Judgment handed down at Preston ... operated by an organisation called the Elizabeth Finn Trust, a charity which provided residential accommodation and ... , or would be required to provide 20 affordable housing units on a site elsewhere in the Royal Borough. As will ... ...