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 died. There was in the meantime a statutory succession and the court had to decide whether here remained a tenancy to succeed to.
Held: The court interpreted the order to mean that that the tenant was to remain on as tenant subject to the added obligation that he had to pay off the arrears by instalments ‘and subject also to this, that if default was made, the plaintiff could then take the appropriate steps mentioned by getting a warrant to execute the order without further or separate proceedings.’ Birkett LJ emphasised the wide powers given to the judge. A possession order did not terminate the statutory tenancy so as to prevent a statutory succession.
Sir Raymond Evershed MR: ‘It is always within the jurisdiction of the court, in my judgment (assuming that the conditions for the exercise of the jurisdiction have arisen) to make an order for possession, but to postpone the effectiveness of the order by making the continued occupation of the tenant conditional, for example, on his paying arrears of rent and costs in such manner as is provided by the order – such a provision being within the language which I have read from section 4 (2) – or to postpone the date of possession for such period or periods as it thinks fit, and subject to such conditions, in regard to payment by the tenant of arrears of rent and otherwise, as the court thinks fit. That indeed is, as I think, plainly the effect of the order of December 2, 1953; and, if that is the effect of the order, it certainly does not necessarily involve the result (as I read section 15 (1)) that, during the period of the postponement of possession, the so-called statutory tenancy ceases altogether, and the tenant wholly ceases to have the protection of the Act.’
Birkett LJ: ‘[T]he widest possible discretion is given to the county court judge, and one can understand why it is done. He is told: ‘You can postpone possession if the facts warrant it; you can postpone the date for possession for such time as you think proper; and, moreover, you can lay down such conditions as you think proper.’ Then at the end of the section come the all-important words: ‘and, if such conditions are complied with, the court may, if it thinks fit, discharge or rescind any such order or judgment.’
What the Act of Parliament was clearly intending to do was to invest the county court judge with the widest possible powers, because of the infinite variety of circumstances in which people are placed in regard to their housing, and in which they are compelled to go to the county court either as landlords or as tenants. The statute says: ‘You can adjourn it if you wish when the facts are such that, if you do adjourn it, that may be an end of the whole matter. If the facts indicate that it is the proper thing to do, you may make an order for possession. If it is a reasonable thing to do, make it. It is quite true that you may suspend the order’ – and, as the county court judge pointed out, during that period of suspension, there may be any number of applications to the court for a suspension of the order; that, at any rate, is in a category by itself. Then the third matter is the wide discretion vested in the court for postponing the date of possession as it thinks fit for such period as it thinks fit and on such terms as it thinks fit; and if those conditions are fulfilled, the court may also, if it thinks fit, discharge the order altogether.’
Romer LJ said: ‘the judgment for possession was not intended to have an immediate effect, and would never indeed take effect at all provided that the conditions as to payment were fulfilled. If this be the true meaning and construction of the order, it is clear that it cannot have resulted in determining Phelps’s statutory tenancy on the date upon which it was made, for the object of the order was to preserve Phelps’s position (albeit conditionally) and preservation is the antithesis of destruction. At Phelps’s death there was a tenancy which was subsisting, and not defunct; and I can see no valid reason why the defendant should not be entitled to it by succession.’

Judges:

Sir Raymond Evershed MR, Birkett LJ, Romer LJ

Citations:

[1956] 1 QB 403

Statutes:

Rent Restriction Act 1923 4(2)

Jurisdiction:

England and Wales

Cited by:

CitedBristol 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.
ExplainedThompson 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 . .
CitedWhite 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 . .
CitedPayne 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 . .
CitedKnowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
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: . .
Lists of cited by and citing cases may be incomplete.

Housing, Litigation Practice

Updated: 11 June 2022; Ref: scu.242156