The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: Mrs White remained an assured tenant despite the continued suspended possession order. Mr Porter was entitled to return to court and request the discharge of the possession order. The appeal in Honeygan-Green was dismissed.
Parliament had empowered the court in subsection (3) to ‘impose conditions’ and, in the next subsection, ‘if the conditions are complied with’ to discharge or rescind the order. On a fair and practical reading, the 1988 Act leads to the conclusion that an assured tenancy subject to a possession order does not end until possession is delivered up. The wording of the 1985 Act contained no similar provision for secure tenancies. However it would be wrong to revisit the decision of the House in Burrows that Thompson and Hall were correctly decided, and ‘on a fair reading of section 85, it is open to the court to include a proleptic discharge provision in a suspended order for possession. The section should be construed, as far as permissible, to confer as much flexibility as possible on the court, and in such a way as to minimise future uncertainty and need for further applications. The section permits a proleptic discharge provision, in my view, not least because the court can always revisit the provision, effectively at the suit of the landlord, as already mentioned, if the terms of the suspension are not complied with. ‘ and
‘The terms of a suspended order are to be literally applied and precisely complied with. Accordingly, if a tenant fails to comply strictly with any of the terms of suspension, the landlord can apply for a warrant. However, if the tenant then applies to the court for relief, the court may suspend or discharge the warrant (and may vary the order). Indeed, if the court considers the landlord’s application for a warrant, or his resistance to the tenant’s application, to have been unreasonable, then the landlord may very well find itself paying the tenant’s costs. ‘
Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Neuberger of Abbotsbury
[2008] UKHL 70, [2009] UKHRR 450, [2008] NPC 137, 25 BHRC 663, [2009] 2 WLR 48, [2009] PTSR 281, [2008] 50 EG 73, [2008] NPC 136, [2009] 2 All ER 829, [2009] AC 636
Bailii, HL, Times
Housing Act 1985 85(2) 85(4), Housing Act 1988
England and Wales
Citing:
Appeal from – White v Knowsley Housing Trust and Another CA 2-May-2007
The tenant was an assured tenant. She fell into arrears of rent and a possession order was made, but suspended on terms. The court considered whether she continued to be an assured tenant, and could assert a right to buy the property as an assured . .
Appeal from – Porter v Shepherds Bush Housing Association CA 19-Mar-2008
. .
Appeal from – Honeygan-Green v London Borough of Islington CA 22-Apr-2008
The claimant was a council tenant with the right to buy her property. A possession order was made, but then discharged.
Held: On the revival of the tenancy her right to buy and discount was also revived, and there was no need to serve a fresh . .
Cited – Burrows v Brent London Borough Council HL 31-Oct-1996
The authority had obtained a possession order from its secure tenant but then agreed to accept payments toward the arrears. The tenant applied for and was granted a declaration that she had on that agreement acquired a new tenancy. The authority . .
Cited – Burrows v Brent London Borough Council CA 21-Jul-1995
. .
Cited – Greenwich London Borough Council v Regan CA 31-Jan-1996
The authority had taken possession proceedings against the secure tenant for non-payment of rent, and obtained an order, suspended on condition as to payments. He again fell into arrears, and the authority made a further agreement. They now sought . .
Cited – Payne v Cooper CA 1958
An absolute possession order had been made against the statutory tenant, but, on later application to suspend, vary or discharge this order under section 4 of the 1923 Act, the statutory tenant obtained a further order postponing the date for . .
Cited – Marshall v Bradford Metropolitan District Council CA 27-Apr-2001
There were three issues; (1) whether it was proper for the judge to have struck out disrepair proceedings when it could be seen that an application to discharge or rescind a suspended possession order would be likely to succeed (2) whether the . .
Cited – Bristol City Council v Hassan and Glastonbury CA 23-May-2006
The council had obtained possession orders for two properties from secure tenants, but the orders were suspended for so long as rent arrears were being discharged. The judges had understood that a date must appear on the possession order.
Cited – Islington London Borough Council v Honeygan-Green (Honeygan) QBD 25-May-2007
The court considered whether the determination of a secure tenancy by the granting of a possession order, brings to an end an existing application which has established the right to buy at a particular time and at a particular price, or whether such . .
Cited – Swindon Borough Council v Aston CA 19-Dec-2002
The tenant had fallen into arrears, and a possession order had been made. Having cleared the arrears, the possession order fell, but the landlord purported to issue a new tenancy agreement, with no security of tenure. They now sought possession . .
Cited – Sherrin v Brand CA 1956
The landlord had obtained a possession order against his secure tenant. The order was suspended, but the landlord then failed to enforce the order after the date and when the tenant had failed to comply with the terms of the suspension. The tenant . .
Cited – Winchester Court Ltd v Miller CA 1944
MacKinnon LJ described the effect of the several attempts to consolidate and amend the laws protecting residential tenants as ‘that chaos of verbal darkness.’ . .
Cited – American Economic Laundry Ltd v Little CA 1950
An unconditional order for possession was made against a statutory tenant under the Rent Acts, and execution of the order was then suspended by the court from time to time pursuant to powers contained in s 5(2). The court distinguished between an . .
Cited – Baker v Turner HL 1950
The House set out the conditions for deciding whether rooms within a house were let as a separate dwelling. The time at which it has to be judged whether premises are entitled to protection is when the action is brought.
Lord Porter said that: . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Doherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
Cited – London Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
Cited – Thompson v Elmbridge Borough Council CA 1987
The wife was the secure tenant of the premises, against whom the local authority landlord obtained a possession order on grounds of arrears of rent, not to be enforced on payment of a weekly sum off the arrears in addition to what the order . .
Cited – Harlow District Council v Hall CA 28-Feb-2006
The defendant had been subject to a possession order in respect of his secure tenancy. He was later adjudged bankrupt. He asserted that the bankruptcy specifically prevented other action to enforce the debt, and the suspended possession order was . .
Overruled – Artesian Residential Investments Limited v Beck CA 19-Mar-1999
The tenant sought relief from forfeiture under section 138 against a landlord seeking possession of his assured tenancy. There were arrears of rent which he believed he could pay.
Held: The grounds for possession were statutory, and had been . .
Cited – Canas Property Co v K L Television Services CA 1970
The rent under the lease was payable in advance on the usual quarter days and the landlord forfeited the lease by serving a writ ‘for instance on 25 April’.
Held: At common law on the breach of a covenant by a lessee, a lessor is entitled to . .
Cited – Brent London Borough Council v Knightley and Another CA 26-Feb-1997
The daughter of a deceased tenant claimed succession to her mother’s interest in a tenancy which was subject to a possession order.
Held: There can be no succession to a tolerated trespasser under a former secure tenancy. . .
Mentioned – Brikom Investments Ltd v Seaford 1981
‘swords with a little ingenuity can be beaten into shields’ . .
Cited – Rogers v Lambeth London Borough Council CA 10-Nov-1999
A local authority landlord had obtained a possession order against the tenant, for arrears of rent, but allowed the tenant to continue in possession, and eventually agreed to the order for possession being revoked. At that time the tenant became a . .
Cited – Pemberton v Mayor and Burgesses of London Borough of Southwark CA 13-Apr-2000
A tenant had continued in occupation as a tolerated trespasser after a possession order. She made regular payments but failed to comply with the order setting terms for suspension. She sought damages from the landlord for nuisance for not dealing . .
Cited – City Council of Bristol v Lovell HL 26-Feb-1998
A County Court may stay a right to buy application by the tenant, even though terms had been agreed, in order to await the result of court proceedings for possession against the secure misbehaving tenant. A court’s case management powers can be . .
Cited – Harrow London Borough Council v Tonge CA 2-Dec-1992
An already established right to buy a council property was enforceable even after the death of the tenant. . .
Cited – Muir Group Housing Association Ltd v Thornley and Another CA 25-Nov-1992
The tenant’s right to buy the property held under a secure tenancy was lost when, even after the start of the procedure for purchase, the Tenant had let out the house to another, and so ceased to be a secure tenant. . .
Cited – Enfield London Borough Council v McKeon CA 1986
In order to enforce the right to buy, a person must normally be a secure tenant throughout the period from service of the original notice, exercising the right to buy, until completion is effected. Each part of the process is an ‘exercise’ of the . .
Cited by:
Cited – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Lists of cited by and citing cases may be incomplete.
Housing
Leading Case
Updated: 31 October 2021; Ref: scu.278661