Landlords and tenants who are the parties in suspended possession proceedings have had their rights clarified in a recent decision by the Court of Appeal.
The case involved an application by Bristol City Council for a possession order against a secured tenant under s.85 of the Housing Act 1985. A suspended possession order was made but the order was not to be enforced so long as the tenant satisfied specific conditions, namely the repayment of arrears of rent. Although there were procedural arguments, the main arguments centred on the basis of the tenancy after a suspended possession order and the procedures necessary for the landlord to obtain possession in such circumstances.
The problem which arises is that, in the words of Lord Justice Brooke, “When a court decides that a local authority landlord has established that statutory grounds for making a possession order exist and that it is reasonable to make such an order, the standard form (known as N28) currently in use in the County Courts has the effect of terminating the tenant's secure tenancy on the date set out on the face of the order. If the court also directs that the possession order is not to be enforced so long as the tenant complies with requirements set out in the order, the tenant enjoys the status of a ‘tolerated trespasser’, and not of a secure tenant, so long as he remains in possession of the premises after the date for giving possession has passed.”
The change in the tenant’s status to that of ‘tolerated trespasser’ has undesirable consequences for both the landlord and the tenant. The landlord loses some rights in these circumstances – for example, the right to enforce the tenant’s covenants and to obtain rent increases using the statutory framework. The tenant who becomes a tolerated trespasser also faces difficulties. For example, he cannot enforce performance of the landlord’s covenants and the statutory right to succession to the tenancy in the event of his death is lost.
Another problem that this creates is that a landlord who obtains a possession order against a tolerated trespasser who is a former tenant does not necessarily get immediate possession. The Court has the power, if it chooses, to fix a later date for possession, thereby postponing the effect of the order, which can delay possession for up to six weeks.
In Court, the argument was advanced that the use of an order which did not set out on the face of the document the date from which the landlord was granted possession of the premises could not be valid. This argument was rejected. The Court ruled that there was no requirement to specify a date for possession, so the tenancy could continue indefinitely provided the tenant complied with the terms of the order.
A second argument was advanced to the effect that for possession to be obtained, the landlord must apply again to the Court to set a date for possession to be granted.
In the Court’s view, there was no reason why the standard form N28 needed to be used and by not using it, the adverse consequences it creates could be avoided. It suggested using a different form of agreement which would set out the basis of the terms agreed between the landlord and tenant with regard to the arrears, failure to comply with which would allow the landlord to obtain possession of the property, but compliance with which would preserve the tenant’s secure tenancy.
Under the revised procedure, where an order postponing the date for possession on conditions is made and the tenant defaults on the terms, the landlord should give the tenant 14 days’ notice of the intention to apply to fix a date for possession. If no response is forthcoming from the tenant, the landlord must apply to the Court, enclosing a copy of the letter to the tenant, and request that possession be granted without further notice being given. A copy of the rent account must also be forwarded to the court. If, on the other hand, the tenant adheres to the terms of the suspended possession order (e.g. by repaying arrears of rent), then the tenancy would continue so long as the conditions set out in the order continued to be satisfied.
In the case in point, the order for possession and arrears payable was confirmed but the case was remitted to the County Court to determine what, if any, terms of postponement of possession would be appropriate.