Ellis v Circle 33 Housing Trust Ltd: CA 23 Sep 2005

The housing association obtained a possession order for rent arrears. The tenant had not attended, and had taken no steps in the matter. The association had corresponded with the housing benefit department of the local authority which had said that the respondent was claiming housing benefit and that an overpayment was to be reclaimed from him. The tenant was evicted, but having persuaded the authority that they had it wrong, he appealed the eviction order and to be re-admitted. On appeal the judge held that the execution of the warrant oppressive because further enquiries should have been made as to why benefit had been stopped, and that it was possible to set the warrant aside even after the eviction. The association appealed.
Held: The appeal succeeded. Though Parliament recognised that a tenant should not be evicted where an alternative existed, at some point the tenant’s right to relief against eviction must stop. Landlords must be able to relet safely. If not much-needed social housing would remain empty fearing a possible reinstatement. After eviction the order would not be set aside unless it had been obtained by fraud, or unless its execution was oppressive or involved an abuse of process. It was necessary to show that the process had been misused so that the tenant had not been afforded the protection that he or she should have had. No abuse had been shown. The appellant had done all that was required, and had properly relied on the authority. The tenant’s non-co-operation made any progress impossible. Further enquiries would not have produced a different result.


Ward, Chadwick and Moore-Bick LJJ


[2005] EWCA Civ 1233




England and Wales


CitedJephson Homes Housing Association v Moisejevs and Another CA 1-Nov-2000
A possession warrant, properly issued and executed in ignorance of a payment into court by the tenant was not an abuse of process. The tenant had paid funds into court in the mistaken belief that this would be effective to set aside the warrant. She . .
CitedMayor and Burgesses of London Borough of Camden v Akanni CA 31-Jan-1997
The context in which the court is willing in a rare, but appropriate, case to intervene to nullify the execution of a warrant for possession goes back to the principles set out in McHenry v Lewis. . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 May 2022; Ref: scu.231075