Suspended Possession Orders
Introduction
In the two and a half months which have passed since the Court of Appeal gave their judgment in the case of Harlow District Council v Hall both landlords and tenants have been in a state of some confusion.
Many local authority occupiers who had been complying with suspended possession orders suddenly discovered that their tenancies have come to an end and that they have become tolerated trespassers, whilst many landlords are at a loss as to how they can enforce the terms of their tenancy agreements against these tolerated trespassers. The Harlow case has also caused confusion in the Courts, with District Judges being uncertain how they should now be dealing with suspended possession orders.
On 23 May 2006 the Court of Appeal attempted to clarify matters in their judgment in the joined cases of Bristol City Council v Hassan and Bristol City Council v Glastonbury.
The Facts
Both of these cases involved tenants who had fallen into rent arrears. The tenants in both cases had asked the District Judge to make possession orders with the usual conditions relating to payment of current rent and arrears, but had asked that no date for possession should be given in the order. Instead, the tenants asked for the date of possession to be postponed for as long as they complied with the terms contained in the order. The District Judges said that it was not possible to make such an order and that a date for possession was required to be given in the order.
The Decision
In short, the Court of Appeal found that Judges are not obliged to give an absolute date for possession in a possession order.
Although the standard "N28" form of suspended possession order requires a date to be given, the Court of Appeal found that there is nothing in the statute which requires a date to be given. It is therefore possible for an order to be made which does allow for the possession date to be postponed and for a tenancy to continue for as long as the tenant complies with the conditions set out in the order.
It was apparent that there has to be some procedure in place whereby the postponement could be brought to an end and a possession date set if the conditions contained in the postponed order are not complied with. Counsel for the tenants were concerned that even an innocent breach of the conditions could lead to the postponed possession order being brought to an immediate end.
In order to address this concern, the Court of Appeal has proposed that if a landlord wishes to fix a possession date after a breach of the postponed possession order, the landlord should write to the tenant giving details of the current arrears level, informing the tenant that they will be making an application to the Court for a possession order to be fixed. This letter should be sent at least 14 days before any such Court application can be made, so as to give the tenant time to respond. After this 14 days, an application to the Court can be made, the application to be accompanied by a copy of the letter which has been sent to the tenant informing them of the application and a copy of the rent account since the date the postponed possession order was made. The Court of Appeal is envisaging that such applications will be dealt with without a hearing.
The Court of Appeal has therefore suggested the following wording to a postponed possession order:-
- The Defendant is to give up possession of [ ] to the Claimant.
- The date on which the defendant is to give up possession of the property to the claimant is postponed to a date to be fixed by the court on an application by the claimant.
- The defendant must pay [ ] for rent arrears and [ ] for costs. The total judgment debt is [ ] to be paid by instalments as specified in paragraph 4 below.
- The claimant shall not be entitled to make an application for a date to be fixed for the giving up of possession and the termination of the defendant's tenancy so long as the defendant pays the claimant the current rent together with instalments of [ ] per week towards the judgment debt.
- The first payment of the current rent and the instalment must be made on or before [ ].
- Any application to fix the date on which the defendant is to give up possession may be determined on the papers without a hearing (unless the district judge considers that such a hearing is appropriate) provided that
(a) the claimant has written to the defendant at least 14 days before making its application giving details of the current arrears and its intention to request that a date be fixed; and
(b) a copy of that letter (and the defendant's response, if any) together with the rent account showing any transactions since the date of this order are attached to this application.
- This order shall cease to be enforceable on [ ] or [when the judgment debt is satisfied].
Although this example is designed to deal with rent arrears cases, clearly it is envisaged that postponed possession orders will also be used for other breaches, such as nuisance cases.
The Impact of this Judgment
On the one hand, this Judgment creates further problems for landlords, as in effect a further tier has been added to the possession process. If a tenant breaches a postponed order, a possession date will have to be fixed and this period will have to pass before a possession warrant can be applied for. This further delay will undoubtedly be frustrating for landlords.
However, on the positive side, the absence of a fixed date for possession will mean that tenancies will continue after the possession order is made and therefore occupiers will only become tolerated trespassers if they are allowed to remain in their home after the landlord has gone back to Court and the fixed date for possession has passed. In those cases where occupiers abide by the terms of the postponed order, the occupiers will continue to be tenants and as such they will be benefit from and be subject to the same rights and responsibilities as other tenants. This will mean that a landlord can seek an injunction for breach of the tenancy agreement against a tenant who is subject to a postponed possession order, for example, as opposed to the difficulties which landlords currently face.
Ashfords has a specialist housing team, who would be happy to provide any assistance :
T: 01392 33 4114
E: housing@ashfords.co.uk
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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