Burrows v London Borough of Brent

This appeal concerned whether an agreement by a local authority landlord to forbear executing an existing possession order created a new secure tenancy or licence under Part IV of the Housing Act 1985. The House of Lords held that such an agreement does not, of itself, create a new secure tenancy or licence. The court emphasised the interaction of sections 82 and 85 of the Housing Act 1985: section 82(2) operates to terminate the original secure tenancy on the date fixed by the possession order, but section 85 gives the court power to postpone, suspend or vary execution of the order and to revive the tenancy prior to execution. Consequently, a landlord and former tenant may agree that the landlord will forbear from enforcing the order, producing a position properly described as a "tolerated trespasser," without creating a new secure tenancy requiring fresh court proceedings.

Material subsidiary findings included that the parties did not intend to create a new tenancy by their agreement of 5 February 1992, and that practical and statutory considerations (including the ability of the court under section 85 to vary or discharge orders) made it inappropriate to impute such an intention.

Background and facts:

• Brent granted a secure tenancy to Miss Burrows and her husband in 1984. Rent arrears led to a final order for possession on 29 January 1992 requiring possession to be given on 12 February 1992.
• On 5 February 1992 Brent and Miss Burrows signed a written arrangement in which Brent agreed not to execute the possession order provided Miss Burrows made specified payments. Miss Burrows failed to keep to those payments, Brent executed a warrant and she was evicted in June 1994.

Procedural history and relief sought:

• Miss Burrows sued for a declaration that she remained a tenant, damages for unlawful eviction and a mandatory injunction to be reinstated. At first instance His Honour Judge Finestein Q.C. found for Miss Burrows (19 August 1994). The Court of Appeal dismissed the landlord's appeal (reported (1995) 27 H.L.R. 748). Brent appealed to the House of Lords.

Issues framed by the court:

• Whether the out-of-court agreement not to execute the possession order created a new secure tenancy or licence which could only be terminated by a further court order under Part IV of the Housing Act 1985.
• How sections 82 and 85 of the Housing Act 1985 operate where a tenant remains in occupation after the date fixed by a possession order but before execution of that order.

Court’s reasoning and decision:

• The House of Lords analysed sections 79–85 of the Housing Act 1985, focusing on section 82(2) (tenancy ends on date fixed by the order) and section 85 (court power to adjourn, stay, suspend or postpone execution and to impose conditions and to discharge the order if conditions are complied with).
• The court accepted that the original tenancy terminated on the date in the possession order but emphasised that section 85 permits the court, up to execution, to postpone or vary the date for possession and thereby revive the tenancy. That statutory scheme created a period of "limbo" during which the occupier may be a tolerated trespasser but may apply to the court for revival of the tenancy.
• Given that statutory framework and the parties’ expressed intentions (the judge found they did not intend to create a new tenancy), the House concluded that an agreement by a landlord to forbear from executing the order does not automatically create a new secure tenancy or licence. To rule otherwise would produce absurd and impractical consequences and penalise landlords acting reasonably.

Relief and disposition:

• The House allowed the appeal, set aside the Court of Appeal and trial judge’s orders, and dismissed Miss Burrows’ action. As Brent succeeded on a point not taken below, no order was made as to costs before the House.

Appeal allowed. The House of Lords held that an out-of-court agreement by a landlord to forbear executing a possession order does not in itself create a new secure tenancy or licence under Part IV of the Housing Act 1985. The court relied on the statutory operation of sections 82 and 85: although section 82(2) terminates the tenancy on the date specified in the possession order, section 85 enables the court (before execution) to suspend or postpone execution, impose conditions, discharge the order if conditions are complied with, and to revive the tenancy. Given those statutory safeguards and the parties’ expressed intention not to create a new tenancy, the arrangement produced a tolerated trespasser status rather than a new secure tenancy; accordingly the original possession order was properly enforced.

County Court possession order 29 January 1992 (Willesden County Court). Trial: His Honour Judge Finestein Q.C. 19 August 1994 (judgment for the respondent). Court of Appeal (Butler Sloss, Otton and Auld L.J.J.) (1995) 27 H.L.R. 748 dismissed the landlord's appeal. House of Lords [1996] UKHL 20 allowed the landlord's appeal and set aside the lower courts' orders.