The applicants were local authority secure tenants. Possession orders had been made, but they sought delay in the order after they had already surrendered possession.
Held: Parliament had given wide discretion to the courts to find a balance between the need for local authorities to recover possession where their tenants were in breach, and the needs of tenants. The discretion did not however extend once possession had been recovered, and the appeal against postponement succeeded.
A secure tenant subject to a possession order but left in possession has a right to revive his tenancy by obtaining an order either for postponement of the date set by the order for possession or even for the discharge or rescission of the order itself pursuant to section 85(2)(b) or (4) of the Act. This right is lost not only when the order for possession is executed against the tolerated trespasser (as provided by section 85(2)) but also when execution is no longer required to give effect to the order.
Chadwick LJ said: ‘It cannot be right to attribute to Parliament an intention that the extended discretionary powers conferred by section 85(2) of the Act should continue to be exercisable once the former tenant had given up possession. The extended discretionary powers were conferred so that the court could maintain the former tenant in possession; once possession had been given up, there was no need for those extended powers.’
Hale LJ suggested that the words ‘execution of the order’ in section 85(2) were themselves apt to cover the voluntary giving up of possession on the part of the tolerated trespasser so that the subsection needed no such wider, purposive interpretation.
Judges:
Lord Justice Waller, Lord Justice Chadwick and Lady Justice Hale
Citations:
Times 05-Sep-2002, Gazette 12-Sep-2002, [2002] EWCA Civ 1137, [2003] 15 HLR 154
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Lee v Leeds City Council; Ratcliffe and Others v Sandwell Metropolitan Borough Council CA 21-Jan-2002
The claimants were tenants who sought damages from their local authority landlords, for failing to remedy defects such as mould, mildew, and condensation in the dwellings let to them. The defects were a result of the design of the building. They . .
Cited by:
Cited – Jones v London Borough of Merton CA 16-Jun-2008
The court was asked ‘If a former secure tenant of a dwelling-house who has become a ‘tolerated trespasser’ in it decides to cease to occupy it, does his liability to pay mesne profits to his former landlord in respect of the dwelling-house cease . .
Lists of cited by and citing cases may be incomplete.
Housing, Litigation Practice
Updated: 06 June 2022; Ref: scu.174787