Artesian Residential Developments Ltd v Beck

An order for possession made under the Housing Act 1988 brings an assured tenancy to an end. The landlord does not need, and the Act does not permit, a parallel claim for forfeiture or re-entry. Section 7(6)(b) requires only that the tenancy terms contain provision for termination on the relevant ground; it does not create forfeiture as a separate ground for possession. The statutory scheme is mandatory where Ground 8 is established. Accordingly, relief under section 138 of the County Courts Act 1984 is unavailable because the proceedings are not proceedings to enforce a right of re-entry or forfeiture for non-payment of rent.

The landlord obtained orders for possession against an assured tenant under Grounds 8 and 10 of Schedule 2 to the Housing Act 1988, because rent arrears satisfied the statutory conditions. The tenant subsequently paid the arrears and sought suspension or relief under section 138 of the County Courts Act 1984. The county court allowed the application and set aside the possession orders. The landlord appealed, arguing that the Housing Act proceedings were not proceedings to enforce a contractual right of re-entry or forfeiture. The central issue was whether section 138 applied to a valid possession order made against an assured tenant.

1. The appeal was allowed. The possession orders were restored, with costs not to be enforced without leave of the court.
2. Section 5(1) of the Housing Act 1988 provides the route by which an assured tenancy is brought to an end. An order for possession under the Act brings the assured tenancy to an end automatically. Section 7(7) supports that construction by providing for the ending of a statutory periodic tenancy when the possession order takes effect.
3. The Act excludes a parallel claim for forfeiture. Section 45(4) expressly provides that a power to determine a tenancy does not include a power of re-entry or forfeiture. Section 7(6)(b) requires only that the tenancy terms contain provision for the tenancy to be brought to an end on the relevant ground. It does not treat forfeiture as an independent ground for possession.
4. Section 7(3), read with Part I of Schedule 2 and Ground 8, imposes a mandatory obligation to make a possession order when the statutory ground is established. The stringency of the scheme is reinforced by section 9(6), which removes the extended power to adjourn, stay or suspend proceedings where a Part I ground is established.
5. Section 138(1) of the County Courts Act 1984 therefore did not apply. The landlord was not proceeding to enforce a right of re-entry or forfeiture for non-payment of rent. The contractual clause permitting re-entry after rent had been unpaid for 14 days nevertheless satisfied section 7(6)(b).

• Court of Appeal: allowed the landlord's appeal from the county court order, restored the possession orders, and refused leave to appeal to the House of Lords.
• Telford County Court: held that section 138 of the County Courts Act 1984 applied and set aside the possession orders.
• District judges: made the original possession orders; one held that the court lacked power to grant the claimed relief.