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 described as ‘the current rent’. The wife defaulted on the terms and left the premises, leaving the husband in occupation. The landlord obtained a warrant for possession against the wife. The husband applied to be added as a defendant in the possession proceedings, so as to be able in the matrimonial proceedings to apply for the transfer of the tenancy to him. The possession order was suspended in these terms: ‘judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays the arrears in addition to the current rent.’
Held: A tenant holding over under a suspended possession order becomes at best a tolerated trespasser if he then breaches the terms of the suspension. The tenancy terminates automatically and at the moment of breach of the conditions.
Russell LJ said: ‘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.’ and
‘In my judgment, once the defendant in proceedings of this kind where there is a suspended order for possession, ceases to comply with the conditions of the order, namely, ‘the punctual payment of the current rent and arrears,’ and there is a breach of the terms of the order, the tenancy, whatever it may be, from that moment comes to an end.’
He then considered Sherrin’s case: ‘What I think is more important, and indeed crucial, is that Sherrin’s case was dealing with an entirely different code of legislation, namely, the Rent Acts, to that with which this case is concerned, namely, the Housing Act 1985. And, in particular, in the instant case, the court has the advantage of the statutory provision, to which I referred earlier, namely section 82(2) which seeks to define the date when a tenancy is to come to an end. Accordingly, I am of the opinion that this court is free to distinguish Sherrin v Brand both on the facts and on the law. Indeed the case is an illustration of how dangerous it can be to rely on judgments delivered where the statutory structure is different from that with which this court is concerned. I repeat section 82(2) provides:
Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant it to give up possession in pursuance of the order.
I return to the terms of the order, which provide:
judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays . . .the arrears . . in addition to the current rent.
In my judgment, once the defendant in proceedings of this kind where there is a suspended order for possession, ceases to comply with the conditions of the order, namely, ‘the punctual payment of the current rent and arrears’, and there is a breach of the terms of the order, the tenancy, whatever it may be, from that moment comes to an end.’
Lord Justice Russell, Sir Denys Buckley
 1 WLR 1425, (1987) 19 HLR 526
England and Wales
Explained – 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 – London Borough of Newham v Hawkins and others CA 22-Apr-2005
The landlord had obtained a possession order, but the tenant continued in occupation as a tolerated trespasser, claiming entitlement as successors in title. Rent arrears had accrued, but even if the tenant had paid thenm the council would have . .
Cited – London Borough of Lambeth and Hyde Southbank Ltd v O’Kane, Helena Housing Ltd CA 28-Jul-2005
In each case the authority had obtained an order for possession of the tenanted properties, but the court had suspended the possession orders. The tenants had therefore now become ‘tolerated trespassers’. They now claimed that they had again become . .
Cited – Richmond v Kensington and Chelsea CA 15-Feb-2006
The borough obtained a possession order of the secure tenancy of a flat occupied by their tenant for nuisance. It was suspended on terms for a certain period. They alleged further breaches shortly before the expiry of the possession order and they . .
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 – 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 – 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 . .
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 – 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 . .
Cited – Knowsley 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: . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Confirmed – 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.
Updated: 17 May 2022; Ref: scu.226029