Dunn & Anor v Bradford Metropolitan District Council

A court has no power under section 85(2)(b) of the Housing Act 1985 to postpone the date for possession after a former secure tenant has given up possession. This is so even where no warrant of possession has been issued. The extended power exists to regulate enforcement and maintain occupation; it cannot retrospectively revive a tenancy merely to restore its mutual covenants for a past period.

The grant of unserviced accommodation under a tenancy is not a supply of services for section 13 of the Supply of Goods and Services Act 1982. Under section 4 of the Defective Premises Act 1972, a landlord's right of entry for repairs or improvements does not create a duty to remedy design defects requiring improvements rather than maintenance or repair.

Two conjoined appeals concerned former secure tenants who had remained in occupation after suspended possession orders had brought their tenancies to an end. Each later gave up possession voluntarily and sought an order postponing the possession date to that date. The purpose was to revive the former tenancy retrospectively so that claims for breach of repairing covenants could be maintained throughout the period of occupation.

In Dunn, HH Judge Cockcroft in Bradford County Court dismissed the reinstatement application and ruled, in substance, against the wider claims under the Supply of Goods and Services Act 1982 and section 4 of the Defective Premises Act 1972. In Marston, HH Judge Grenfell in Leeds County Court reinstated the tenancy until the date possession was surrendered. The Marstons also contended that the council was estopped from denying the continued tenancy.

The central issue was whether section 85(2)(b) of the Housing Act 1985 remained available after voluntary surrender of possession.

1. The Dunn appeal was dismissed and the Marston appeal was allowed. Chadwick LJ gave the principal judgment, with which Hale and Waller LJJ agreed. The court held that the power in section 85(2)(b) of the Housing Act 1985 ends once the former tenant has given up possession. It cannot be used solely to recreate retrospectively the landlord's and tenant's covenants during a period when the former tenant was a tolerated trespasser.

2. The words permitting an order at any time before execution had to be construed in the statutory setting. The extended powers were intended to regulate enforcement of a landlord's established right to possession and, where appropriate, permit continued occupation on conditions. They were not intended to protect a person who voluntarily gives up possession. Where a warrant had issued, execution was completed when possession was delivered to the landlord, even if the bailiff did not attend. More fundamentally, the power ceased once possession had been surrendered, whether or not a warrant had issued. Hale LJ cautioned that the precise meaning of execution may depend on its context, but agreed that either route of construction led to that result.

3. The Leeds City Council was not estopped from denying that the Marstons remained tenants until they moved. A shared mistaken belief about the tenancy did not make that position unconscionable. The offer and acceptance of alternative housing were not shown to have depended on an assumption that the old tenancy continued, and the Marstons would have accepted rehousing even had the legal position been understood. The council undertook to waive outstanding arrears or mesne profits, but the possible effect of a later arrears document did not arise for decision.

4. Section 13 of the Supply of Goods and Services Act 1982 did not imply a general duty of reasonable care and skill into a tenancy merely because a local authority provided housing. A tenancy grants a property interest; after the grant, respecting the tenant's possession is not the carrying out of a service. Section 13 could apply to repair or improvement works actually undertaken, but could not impose services or fitness obligations absent from the tenancy.

5. Under section 4(4) of the Defective Premises Act 1972, the deemed maintenance or repair obligation is limited by the landlord's relevant right of entry and by the statutory concept of maintenance or repair. It does not require the landlord to remedy inherent design defects by improvements merely because those works would improve the dwelling's condition. The Dunns could rely on the provision only if they established a remediable defect in the damp-proof installation amounting to want of repair.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 1137, dismissed the Dunn appeal and allowed Leeds City Council's appeal in Marston. The Marstons' cross-appeal was dismissed.

• Bradford County Court (HH Judge Cockcroft): Dismissed the Dunns' application to reinstate the tenancy. He also limited their reliance on the Supply of Goods and Services Act 1982 and section 4 of the Defective Premises Act 1972.

• Leeds County Court (HH Judge Grenfell): Held that voluntary surrender without execution of a possession order did not bar an application under section 85(2)(b) of the Housing Act 1985, and revived the Marstons' tenancy until 4 October 2000. That order was reversed.