Swindon Borough Council v Aston

A suspended possession order against a secure tenant ends the tenancy when the tenant breaches its conditions, leaving a tolerated trespasser. Later payment of arrears may make the order unenforceable, but does not retrospectively revive the tenancy or permit rescission under section 85(4) where the suspension conditions were not complied with.

After the order has ceased to be enforceable, the parties’ subsequent conduct may objectively create a new tenancy. The question is fact-sensitive. Continued occupation and rent payments, rent increases treated as tenancy variations, reliance on tenancy terms, and provision of a new tenancy agreement may establish that relationship. The possession claim was remitted on the footing that the appellant was a secure tenant.

Mr Aston occupied a council dwelling as a secure tenant. In 1991, the landlord obtained a possession order for rent arrears, suspended on conditions requiring payment of the arrears and current rent. He breached those conditions, but remained in occupation and later paid the arrears and costs.

The council subsequently treated him as a tolerated trespasser, served notices to quit and sought possession based on the alleged absence of a subsisting tenancy and alleged tenancy breaches. District Judge Simons and HHJ Wade concluded that the original tenancy had ended. Miss Recorder Ralphs held that the possession order was unenforceable but refused rescission under section 85(4), while remitting issues concerning nuisance and proportionality.

The central issue before the Court of Appeal was whether the parties’ later conduct created a new secure tenancy after the original order became unenforceable.

1. Disposition. Mr Justice Pumfrey delivered the judgment, with Lord Justice Jonathan Parker and Lord Justice Schiemann agreeing. The appeal was allowed. Permission was granted, to the extent necessary, for the further appeal from HHJ Wade’s decision. The possession proceedings were remitted to the District Judge.
2. Under sections 82 and 82(2) of the Housing Act 1985, a secure periodic tenancy ends on the date specified for giving possession under a possession order. Where the order is suspended on conditions, breach of those conditions ends the tenancy. During the resulting period of limbo, continued occupation and receipt of rent are ordinarily referable to the former tenant’s statutory position and do not, without more, create a new secure tenancy.
3. The final term of the 1991 order, providing that it would cease to be enforceable when the arrears and costs were satisfied, took effect according to its words. It allowed early payment to end enforceability. However, because the tenancy had already ended through breach, payment left Mr Aston a tolerated trespasser. Following Marshall v Bradford Metropolitan Council [2001] EWCA Civ 594, the conditions in section 85(4) meant the conditions on which possession had been suspended, as varied under section 85(3). Those conditions had not been complied with. Rescission under section 85(4) was therefore unavailable, and postponement under section 85(2) was no longer possible once the order had ceased to be enforceable.
4. Whether subsequent conduct creates a new tenancy depends on the facts and is assessed objectively. After 8 January 1996, the parties’ conduct was only sensibly referable to a landlord-and-tenant relationship. Relevant matters included regular rent payments, payment of increased rents, the council’s reliance on tenancy terms when addressing the garden and business use, its handling of complaints, and the provision of a new tenancy agreement. Mr Aston was therefore a secure tenant from 1 April 1996.
5. The Court did not need to determine the arguments under Article 8 of the European Convention on Human Rights. The matter was remitted for determination of the council’s possession application under sections 83 and 84 of the Housing Act 1985, on the footing that Mr Aston was a secure tenant. The respondent was ordered to pay the appellant’s costs in both courts, subject to the stated exception.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 1850, the appeal was allowed. The court held that a new secure tenancy had arisen and remitted the possession application on that footing.
2. Swindon County Court: District Judge Simons held that the original tenancy had ended when the suspension conditions were breached and that Mr Aston was a tolerated trespasser. HHJ Wade dismissed the appeal. Miss Recorder Ralphs refused rescission under section 85(4), held that the order was unenforceable, and remitted issues concerning nuisance and proportionality.