London Borough of Brent v Knightley (Deceased) & Anor

A secure tenancy ends under section 82(2) of the Housing Act 1985 when the date for giving possession under a possession order takes effect. A later stay or suspension of execution under section 85 does not revive it. It only postpones enforcement and preserves the possibility of lawful revival by a further postponement order. The right to seek postponement is not an inheritable interest in land. It belongs to the tenant, specified spouses or former spouses, and, where the statutory conditions are met, a qualified successor. The succession provisions do not apply where no tenancy exists at death. A family member occupying as a tolerated trespasser therefore cannot inherit a right to revive the former tenancy.

The appellant was the daughter of a secure tenant of property owned by the respondent local authority. After a possession order for rent arrears, warrants were suspended on conditions which were later breached. The tenant died, and her daughter claimed succession under section 89 of the Housing Act 1985.

A District Judge joined the daughter to possession proceedings, stayed the warrant and refused leave to issue it against her. On the authority’s appeal, His Honour Judge Maher held that no tenancy existed at the tenant’s death, set aside that order and granted leave to issue the warrant. The central issue was whether the daughter could succeed to the tenancy or inherit a right to apply for its revival under section 85.

The appeal was dismissed unanimously. Aldous LJ gave the leading judgment, and Schiemann LJ and Hirst LJ agreed.

1. Termination of the tenancy. Applying section 82(2) of the Housing Act 1985 and Burrows v Brent London Borough Council [1996] 1 WLR 1448, the court held that the possession order made the tenancy terminable on the date for possession. The conditions attached to the original order were breached, so the tenancy ended when the initial 28-day period expired.
2. Effect of later orders. Section 85 permits the court to postpone the date of possession and thereby revive or reinstate a secure tenancy before execution, even after it has ended. A stay or suspension of execution, however, merely postpones enforcement and does not alter the operation of section 82(2). The later warrant suspensions therefore did not revive the tenancy; they only prolonged the possibility of revival.
3. Succession and revival rights. A right to apply for postponement is not an interest in land capable of inheritance. Section 85 gives the relevant right to the tenant and, in the specified circumstances, to a spouse or former spouse. Section 87 applies only where a secure tenancy exists when the tenant dies. The appellant therefore had no statutory right to apply for revival and no tenancy to which she could succeed.
4. Tolerated trespasser. The appellant was not a tolerated trespasser of the kind recognised in Burrows. That concept required occupation tolerated by law and did not confer on this family member a right to revive the former tenancy.

The order below was upheld. The appeal was dismissed with costs to the respondents. An order was made under section 18 of the Legal Aid Act, with the appellant’s contribution assessed at nil.

• Court of Appeal (Civil Division): The appeal was dismissed, with costs to the respondents. [1997] EWCA Civ 917
• Willesden County Court: On 26 March 1996, His Honour Judge Maher set aside the District Judge’s order, refused the appellant’s application to be joined as a second defendant and granted leave to issue the warrant for possession.
• District Judge Cohen: The appellant was joined to the possession proceedings, execution of the warrant was stayed and leave to issue the warrant against her was refused.