London Borough of Lambeth v Rogers

A secure tenancy terminated when the tenant breached a suspended possession order, leaving the former tenant in tolerated occupation during a statutory limbo period. The tenancy and its covenants could nevertheless be revived retrospectively by a court order under section 85 of the Housing Act 1985. A private agreement to tolerate occupation did not itself revive the tenancy or determine the result, although it was cogent material for the court’s discretion. Once revived under section 85(2)(b), the repairing obligations also operated retrospectively. The court retained an overriding discretion and could take account of the tenant’s compliance with the agreement and the resulting retrospective liability for disrepair.

A former secure tenant of a local authority remained in occupation after failing to comply with a suspended possession order. She became a tolerated trespasser, but the possession order was not enforced. The parties later entered into an agreement for payment of rent arrears and continued occupation.

The tenant claimed damages for disrepair occurring during the period in which no tenancy existed. The county court discharged the possession order, revived the secure tenancy retrospectively and awarded damages. The local authority appealed, raising the effect of the agreement, the proper exercise of the discretion under section 85 of the Housing Act 1985, and the retrospective effect of revival.

1. Appeal dismissed. The county court judge had been entitled to discharge or vary the possession order and to award damages for disrepair.
2. The secure tenancy ended when the tenant failed to comply with the suspended possession order. During the resulting limbo period she was a tolerated trespasser and could not enforce the repairing covenant, because no tenancy existed.
3. The possession order had not been executed. Under section 85 of the Housing Act 1985, the court retained power to postpone the date of possession and thereby revive a terminated secure tenancy.
4. The April 1998 agreement did not itself revive or reinstate the tenancy. Nor could it oust the court’s overriding statutory discretion. Where the parties agreed on its effect, a further application might be unnecessary as a matter of practical formality. Where their rights were disputed, the court had to determine the matter and exercise its statutory discretion.
5. The tenant’s compliance with the agreement materially justified an order under section 85(2)(b). The judge had considered the relevant history, the payment arrangement, the likelihood of future compliance and the retrospective consequences for the authority. His decision was neither based on an error of principle nor plainly wrong.
6. A section 85(2)(b) order was fully retrospective. Unless the court otherwise directed, revival extended to the repairing covenants, making the authority liable for breaches occurring during the limbo period.

The respondent was awarded her costs. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the local authority’s appeal from the decision of His Honour Judge Gibson in the Lambeth County Court.
• Lambeth County Court: discharged the possession order and awarded the former tenant £4,742.82 for disrepair, with part satisfaction by cancellation of the rent-account debit balance.