Marshall v Bradford Metropolitan District Council

A breach of a payment condition imposed on a suspended possession order ends a secure tenancy from the date of breach. A former tenant who remains in occupation is a tolerated trespasser, and the former tenancy covenants do not apply during the resulting period of limbo.

A post-breach agreement or waiver by the landlord does not itself revive the tenancy. Revival requires a further court order under the Housing Act 1985. A court may adjourn a strike-out application to enable such an application, but it is not required to do so under CPR 1.4. The court must consider the prospects of revival, the reason no application was made, and prejudice to the landlord.

Mrs Marshall brought disrepair proceedings against the local housing authority in respect of a dwelling formerly occupied under a joint secure tenancy. The tenancy was subject to a suspended possession order made in January 1989, requiring punctual payment of current rent and instalments towards arrears. The conditions were breached, and the proceedings were issued more than six years after the tenancy had ended.

The District Judge struck out the claim as limitation-barred. His Honour Judge Altman dismissed the appeal, rejecting arguments based on waiver and automatic revival when the arrears were later paid. The issues before the Court of Appeal were whether the tenancy revived automatically, whether the landlord had waived reliance on the breach, and whether the disrepair proceedings should instead have been adjourned to permit an application under section 85 of the Housing Act 1985.

Appeal dismissed. Lord Justice Chadwick delivered the leading judgment. Sir Christopher Staughton and Lord Justice Schiemann agreed.

1. Under sections 82(2) and 85 of the Housing Act 1985, failure to comply with a payment condition in a suspended possession order brings the secure tenancy to an end from the date of breach. The former tenant remains in occupation as a tolerated trespasser until the possession order is executed or the court makes a further order. During that period neither party can enforce the old tenancy covenants. The court applied Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, and followed the approach in Burrows v Brent London Borough Council [1996] 1 WLR 1448 and Lambeth London Borough Council v Rogers (1999) 32 HLR 361.
2. A post-breach agreement, or waiver inferred from the landlord’s conduct, that the possession order will not be enforced does not itself revive the secure tenancy. Revival requires a further order under section 85(2), varying the conditions or postponing the possession date, or an order under section 85(4) where the relevant conditions have been complied with. The further order operates retrospectively. The post-breach waiver reasoning in Greenwich London Borough Council v Regan (1996) 28 HLR 469 was not followed.
3. The direction in the 1989 order that the judgments should cease to be enforceable when the arrears were satisfied did not erase the earlier termination and was not an advance discharge or rescission under section 85(4). It merely defined the period during which the suspended possession order remained in force.
4. The court had a discretion to adjourn the strike-out application to enable a cross-application under section 85(2)(b), but CPR 1.4 did not require that course. Relevant considerations included the payment record and prospects of revival, the reason no cross-application had been made, the position of the absent joint tenant, and prejudice to the landlord, including possible limitation consequences for damages. On the facts before the lower courts, the claim was bound to fail and no cross-application had been made. The strike-out was therefore open to the District Judge and was not shown to involve an error of principle.

The appeal was dismissed. A section II order was made against the Legal Services Commission, with a Community Legal Services Regulation assessment. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Appeal dismissed on 27 April 2001.
2. Bradford County Court: District Judge Rhodes struck out the disrepair proceedings on 24 June 1999. His Honour Judge Altman dismissed the appeal on 29 October 1999 and upheld the strike-out order.