| HOUSING — Assured tenancy — Order for possession — Execution of order for possession suspended — Whether tenancy terminated — Whether occupant remaining as “tolerated trespasser” — Housing Act 1985, s 82(2) — Housing Act 1988, s 5(1)
Knowsley Housing Trust v White (Secretary of State for Communities and Local Government intervening) [2007] EWCA Civ 404
CA: Buxton and Longmore LJJ, Sir Martin Nourse: 2 May 2007
In the case of an assured tenancy, where the court granted an order for possession using County Court Form N28 but suspended execution on terms, the assured tenancy expired on the last date stated for possession and the occupant remained merely as a “tolerated trespasser”.
The Court of Appeal so held when dismissing the appeals of Julie White from two orders, viz: (i) an order of District Judge Sykes, sitting in the Liverpool County Court on 8 June 2004, granting the Knowsley Housing Trust possession, on or before 6 July 2004 but with enforcement suspended on terms, of the relevant premises originally occupied by Mrs White as an assured tenant; and (ii) an order by Judge Mackay, sitting in the same court on 14 September 2006, dismissing an application by Mrs White for a declaration that she remained an assured tenant pending execution of the order (in circumstances where she sought to exercise her ostensible “right to buy”). Mrs White had remained in possession and paid over certain moneys equivalent to rent under the terms of the suspended order. The grounds of appeal were, inter alia, that an assured tenancy that was made the subject of an order for possession only came to an end when possession was given up in pursuance of the order.
BUXTON LJ said that there were cases where judges had relied upon s 82(2) of the 1985 Act as demonstrating when a secure tenancy ended, but in neither Harlow District Council v Hall [2006] 1 WLR 2116 nor Bristol City Council v Hassan [2006] 1 WLR 2582 was s 82(2) used other than as a convenient statement of a binding statutory rule as to the date of termination of such a secure tenancy; and the question when the tenancy would have terminated in the absence of that statutory rule was not in issue; again, in Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, the question did not arise how the case would have been decided in the absence of s 82(2) of the 1985 Act, so that it was not possible to draw with certainty from Thompson’s case, any more than it was possible to draw from the other cases in which s 82(2) had been discussed, what was the correct construction of the similar scheme for assured tenancies that contained no direct equivalent to s 82(2). Section 5(1) of the 1988 Act said nothing about the issue addressed by s 82(2) of the 1985 Act of the date on which the assured tenant was to give up possession; and it was difficult to see why it followed that that date had to be the date of surrender of possession just because a different date was specified for secure tenancies by s 82(2). Furthermore, the effect of s 5(1) of the 1988 Act was addressed in Artesian Residential Developments Ltd v Beck [2000] QB 541, where the order for immediate possession was held to have terminated the tenancy, although there was the distinction that in that case execution of the applicable order was not suspended or postponed either on its making or at a time before execution. Nevertheless, having regard to the authorities and the terms of the N28 possession order itself, the assured tenancy in the instant case expired on 6 July 2004, the last date for giving possession; and Mrs White remained in occupation as a “tolerated trespasser”during the period of suspension thereafter. She had also lost the statutory right to buy relied upon. These results would not necessarily be the same in the case of orders differently drawn.
LONGMORE LJ gave a concurring judgment and SIR MARTIN NOURSE agreed with both judgments.
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