Baygreen Properties Limited v Gil

Under the Housing Act 1988, a possession order cannot be made unless the statutory ground relied upon is established. The court must investigate that issue even where the tenant consents.

A consent to possession is not necessarily an admission that the statutory conditions are satisfied. Any relevant admission must be clearly shown. A compromise, particularly one involving payment to the tenant and a stay of the parties’ claims, may explain the consent without admitting rent arrears.

For mandatory rent-arrears grounds, the court must be satisfied that the required rent is lawfully due. For discretionary grounds, it must expressly consider reasonableness.

Baygreen Properties Limited sought possession of a room let to Chinwe Cordelia Gil under an assured periodic tenancy. It relied on grounds 8 and 10 in Schedule 2 to the Housing Act 1988, alleging substantial rent arrears.

The tenant disputed the rent claimed and relied on counterclaims, including alleged breaches of repairing and other landlord obligations. The parties agreed a consent order under which possession would be given, the claims and counterclaim would be stayed, and Baygreen would pay the tenant £2,500.

The Shoreditch County Court made the order. The tenant appealed on the question whether the court had jurisdiction to do so, given that the judge had not determined whether the statutory grounds were established.

1. Appeal allowed. The possession order was set aside and the matter was remitted to the County Court. The appellant’s publicly funded costs were subject to detailed assessment.
2. The jurisdiction conferred by section 7 of the Housing Act 1988 is limited. The court cannot make a possession order unless the relevant statutory ground is established. That duty exists independently of whether the tenant raises the issue.
3. Where a tenant alleges an arguable breach of repairing obligations, damages may be available by way of equitable set-off. The rent lawfully due for the purposes of the statutory grounds is therefore the rent after deduction of any proper set-off.
4. Ground 8 is mandatory. The court must be satisfied that at least eight weeks’ rent lawfully due is unpaid both when the notice is served and at the hearing. Ground 10 is discretionary. The court must consider whether possession is reasonable, taking into account all relevant circumstances at the hearing in a broad, common-sense manner.
5. The judge should determine which ground is relied upon and satisfied. The ground should ordinarily appear on the face of the order. An order is not necessarily invalid merely because the ground is omitted, provided the court in fact considered the relevant statutory issue.
6. In a consent case, the necessary admission may be express or implied, but it must be clearly shown. Consent may instead reflect a compromise or a decision to surrender possession for commercial reasons. The judge should ask what admissions are made rather than treating consent alone as sufficient.
7. Here the judge had not read the trial bundle, heard evidence, or delivered judgment. He asked only whether the tenant consented to the order. The circumstances indicated a compromise, not an admission that eight weeks’ rent was lawfully due. Ground 10 was not advanced as the basis of the order, and reasonableness was not considered. The order was therefore made without jurisdiction.

• Court of Appeal (Civil Division): allowed the appeal from the consent order made by His Honour Judge Cotran in the Shoreditch County Court on 4 October 2001. The possession order was set aside and the matter remitted.