Thompson v Elmbridge Borough Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE RUSSELL,SIR DENYS BUCKLEY
Judgment Date14 July 1987
Judgment citation (vLex)[1987] EWCA Civ J0714-5
Date14 July 1987
CourtCourt of Appeal (Civil Division)
Docket Number87/0734

[1987] EWCA Civ J0714-5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE KINGSTON UPON THAMES COUNTY COURT

(His Honour Judge Figgis)

Royal Courts of Justice

Before:

Lord Justice Russell

and

Sir Denys Buckley

87/0734

Between:
Mark Russell Thompson
Appellant (Applicant)
and
Elmbridge Borough Council
Respondents (Respondents)

MR. J. HAINES (instructed by Messrs McCarthy Robertson, Surrey) appeared on behalf of the Appellant/Applicant.

MR. P.M. VILLAGE (instructed by the Solicitor to the Borough Council) appeared on behalf of the Respondents/Respondents.

LORD JUSTICE RUSSELL
1

This case raises issues involving the rights and potential rights of a husband vis-a-vis a local authority in respect of the matrimonial home where that dwelling has been let by the local authority to the wife alone as opposed to jointly with her husband. It is an appeal against a judgment of His Honour Judge Figgis sitting at the Kingston Upon Thames County Court on 28th January 1987.

2

The learned judge had before him an originating application which sought various forms of relief. The application was made by the husband, Mark Russell Thompson, the respondent to the application being the Elmbridge Borough Council. The applicant is now the appellant before this court. By his application he sought a declaration that he had the right to occupy premises numbered 43 Beech Close, Hersham, Surrey. He sought to be added as a defendant to proceedings that had been taken by the local authority against his wife, Mrs. Carol Thompson, and he sought, by way of an alternative, suspension of a warrant for possession that had issued against the premises 43 Beech Close, Hersham. Other relief was sought in the application, but that has not been pursued before this court.

3

In order to understand the appeal it is necessary to set out in some detail the factual history of the matter. In 1983 the appellant married Carol Thompson. On 28th May 1984 the Elmbridge Borough Council granted to Carol Thompson, pursuant to the Housing Act 1980, a secure tenancy. A secure tenancy is a creature of statute. Its definition has now been re-enacted in the Housing Act 1985 to which I must now turn. Section 79 of the Act provides:

"79-(l) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied."

4

When one goes to section 80, for the purposes of this case "The landlord condition is that the interest of the landlord belongs to…a local authority." As to section 81 for the purposes of this case, the tenant condition is that the tenant is an individual and occupies the dwelling-house as his principal home. Those conditions were satisfied in this case and accordingly a secure tenancy was created in May 1984, the tenant being Mrs. Thompson.

5

Such a tenancy cannot be brought to an end, except pursuant to section 82. That provides, so far as material, as follows:

"82-(l) A secure tenancy which is either—

(a) a weekly or other periodic tenancy,…..

cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house…..".

6

Such an order cannot be made, save on grounds which are set out in section 84 of the Act, and only then after the landlord has complied with various prerequisites that are set out in section 83. One of the grounds for an order for possession of a secure tenancy is that the tenant has defaulted in payment of the rent.

7

Mrs. Thompson fell into arrears in the payment of the rent for this property, and having complied with the various statutory requirements as to warning the tenant of the consequences of the arrears accumulating, eventually, on 31st January 1985, the local authority took proceedings seeking possession of the premises and obtained an order from the county court. It is important to look at the precise terms of the order. It was in a form to be found at N.28 of the prescribed forms for county courts laid down pursuant to the County Court (Forms) Rules 1982. The order, so far as material, read as follows:

"IT IS ADJUDGED that the plaintiff do recover against the defendant possession of the land mentioned in the particulars of claim attached to the summons in this action, namely:

43 Beech Close, Hersham, Surrey.

AND that the plaintiff do recover against the defendant the sum of £498.82 for arrears of rent [together with a sum representing the costs].

IT IS ORDERED that the judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays to the plaintiff or his agent the [arrears of rent…and] costs by instalments of £10.00 per week in addition to the current rent.

8

[I emphasise those words]

AND ALSO that the judgment shall cease to be enforceable when the [arrears of rent..…and] costs referred to above are satisfied."

9

It is to be observed that on the face of the order it does not purport to terminate the tenancy. The tenancy, in my judgment, plainly continues and is recognised by the order as continuing. The judgment for possession, however, is suspended so long as the current rent is paid in addition to the arrears. If that were not the true interpretation of the order, then plainly the words "the current rent" to which I have adverted, would not appear as they do.

10

Mrs. Thompson did not comply with the terms of that order. In August 1985 we are told that she left the dwelling-house as a result of matrimonial problems with the appellant. She left, taking her child with her, and she indicated to the local authority that there was no prospect of a reconciliation. They very properly advised her to seek assistance in the resolution of her problems.

11

By 5th September 1985, it is acknowledged on all sides, Mrs. Thompson had again permitted arrears of rent to accumulate and was in breach of the order obtained against her in the county court at Kingston Upon Thames. When she left the matrimonial home the appellant remained there. He was unemployed. The rent was paid by the Department of Social Security. None of the arrears was paid by the appellant. There were some payments made by Mrs. Thompson after her departure.

12

On 8th January 1986 the appellant, still residing in the premises and Mrs. Thompson still being absent from them, the local authority, in accordance with what appears to be the normal practice, went to the office of the Kingston Upon Thames County Court and there applied for a warrant of possession, directing the bailiffs to turn out those in occupation of this dwelling-house. There was no further application to the judge or to the registrar. What happened, it seems, was that those representing the local authority simply indicated to the officials in the office of the County Court that the order of 31st January 1985 had not been complied with by the defendant and tenant, Mrs. Carol Thompson, and that in those circumstances a warrant for possession should be issued. It was issued. It was directed to the tenant Mrs. Thompson, and not to the appellant, Mr. Thompson.

13

On 4th February 1986 the appellant made his originating application, the subject of this appeal, and on the following day, 5th February, the appellant applied to the Tunbridge Wells County Court for an order under the Matrimonial Homes Act 1983. It is unnecessary in this judgment to detail in extenso the provisions of that statute relating to the rights concerning the matrimonial home where one spouse has a tenancy, the other has not, and a divorce ensues. Suffice it to say that the Act contains power in the court by virtue of section 7 and Schedule 1 to the Act, enabling in appropriate cases a transfer of a tenancy to be effected from one spouse to the other as part of the financial arrangements consequent upon a divorce. Such a transfer, however, can only take place if there is in existence a tenancy to be transferred. In this appeal therefore the question arises whether there was on 5th February 1986 an extant secure...

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27 cases
  • Austin v Southwark London Borough Council
    • United Kingdom
    • Supreme Court
    • 23 Junio 2010
    ...under that subsection it ends on the date the court specifies, not at any later date when the tenant is actually evicted. In Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, 1430-1431 Russell LJ described the effect of the subsection in this way: "In my judgment, once the defendant ......
  • Kensington and Chelsea Royal London Borough Council v Richmond
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 Febrero 2006
    ...the suspension of the possession order on conditions, the tenancy terminates automatically on the breach of those conditions: Thompson v Elmbridge Borough Council [1987] 1 WLR 1425. 8 So far so good. But the issue in Burrows concerned the status of an agreement between the landlord and the ......
  • Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 19 Marzo 2008
    ...of that statutory rule was not at all in issue. That, however, was said not to be so in the case most relied on in this respect, Thompson v Elmbridge BC [1987] 1 WLR 30 Thompson arose out of matrimonial proceedings. The wife was the secure tenant of the premises, against whom the local aut......
  • Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
    • United Kingdom
    • House of Lords
    • 10 Diciembre 2008
    ...Act. 71 The authorities suggest that the position in relation to secure tenants under the 1985 Act is rather different. In Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, a secure tenant was subject to an order that she give up possession in 28 days, on terms that operation of the o......
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