Burrows v Brent London Borough Council

After an order for possession terminates a secure tenancy on the date fixed for possession, an agreement to forbear from execution does not ordinarily create a new secure tenancy or licence. The parties’ intention governs, subject to the statutory structure.

Until execution, the court may postpone the possession date under section 85(2) of the Housing Act 1985 and thereby revive the former tenancy. The intervening occupation is a statutory limbo in which the occupier may be treated as a tolerated trespasser. An agreement granting an indulgence may operate according to its intended effect without requiring the landlord to obtain a new possession order.

Brent granted Miss Burrows and her husband a secure tenancy. After rent arrears accrued, the county court made an immediate and unconditional possession order requiring possession on 12 February 1992. Before that date, Brent agreed not to evict Miss Burrows while she paid current charges and instalments towards the arrears. She later defaulted, and Brent executed the original order.

Miss Burrows sought a declaration that she remained a tenant, damages for unlawful eviction and reinstatement. Judge Finestein QC held that the agreement created a new tenancy or licence and granted relief. The Court of Appeal, reported at (1995) 27 H.L.R. 748, dismissed Brent’s appeal.

The issue before the House was whether the forbearance agreement created a new secure tenancy or licence, so that Brent required a further possession order.

Appeal allowed unanimously. The Court of Appeal’s order and Judge Finestein QC’s order were set aside, subject to the qualifications concerning costs and legal-aid taxation, and Miss Burrows’ action was dismissed.

1. Per Lord Browne-Wilkinson, in the leading speech, section 82(2) of the Housing Act 1985 ended the original secure tenancy on the date fixed for possession rather than on execution. Lord Jauncey reached the same conclusion: the provision is mandatory, so occupation after that date is no longer attributable to the original tenancy. The other Law Lords agreed with one or both of those speeches.

2. Per Lord Browne-Wilkinson and Lord Jauncey, section 85 nevertheless allows the court, at any time before execution, to postpone the possession date. It may do so after the secure tenancy has ended. The order then revives or reinstates that tenancy, subject to any conditions imposed. The references to post-termination occupation payments and to discharge or rescission confirm that the statutory scheme contemplates occupation after termination without a new tenancy.

3. Per Lord Jauncey, an order staying or suspending execution merely delays enforcement and does not alter the termination produced by section 82(2). An order postponing the possession date has the different effect of changing the date relevant to termination and may revive an ended tenancy.

4. Per Lord Browne-Wilkinson, the period after the possession date but before execution is a statutory limbo. The old tenancy has ended but remains capable of revival. The former tenant may therefore be a tolerated trespasser whom the landlord has agreed not to evict pending revival or breach of the agreed conditions.

5. Per Lord Browne-Wilkinson, the legal character of an agreement permitting a former tenant to remain depends on the parties’ intention. In the absence of special circumstances, an agreement not to enforce a conditional or unconditional possession order strictly does not create a new secure tenancy or licence. Here, neither party intended a new tenancy or licence. Their agreement merely deferred execution while the conditions were observed.

6. Per Lord Jauncey, the agreement could be given an effect corresponding to a suspension of execution without altering section 82(2). It preserved the former tenant’s ability to seek relief under section 85 and accorded with Parliament’s protective scheme. Requiring a fresh possession order whenever a landlord granted a reasonable indulgence would penalise consensual arrangements and generate unnecessary court applications.

Lord Keith agreed with Lord Browne-Wilkinson. Lord Griffiths and Lord Steyn agreed with the speeches of Lord Browne-Wilkinson and Lord Jauncey. No order was made as to costs before Judge Finestein or in the House, and the Court of Appeal’s order was preserved as to costs.

1. House of Lords: Allowed Brent’s appeal unanimously. The Court of Appeal’s order was set aside save as to costs, and Judge Finestein QC’s order was set aside save as to legal-aid taxation.
2. Court of Appeal: Butler Sloss, Otton and Auld LJJ dismissed Brent’s appeal from Judge Finestein QC: (1995) 27 H.L.R. 748.
3. County Court: Judge Finestein QC declared that Miss Burrows remained a tenant, ordered her reinstatement and referred damages for assessment. Earlier proceedings to set aside the possession order and bailiff’s warrant had been dismissed.