Bristol City Council v Hassan & Anor

A court making a possession order against a secure tenant is not required to specify an absolute date for possession. Under sections 82(2) and 85 of the Housing Act 1985, it may postpone the date of possession until a date later fixed by the court, subject to conditions for current rent and arrears. The secure tenancy then continues unless and until the court fixes that date.

An order which specifies a possession date but merely suspends its enforcement has a different effect: the tenancy ends on the specified date. The form of postponed order and the conditions imposed remain matters for the judge’s discretion.

The council sought possession orders against two secure tenants for rent arrears. In each case, the county court was prepared to make a suspended possession order on payment terms, but considered that it had to specify a date for possession in the order. The tenants appealed.

The appeals followed Harlow District Council v Hall, [2006] EWCA Civ 156, which established that the then current Form N28 ended a secure tenancy on its stated possession date even where enforcement was suspended. The central issue was whether the court could instead postpone possession without fixing an absolute date, so that the tenancy would continue while the tenant observed the conditions.

1. Appeals allowed. The district judges had wrongly treated their discretion as requiring an absolute possession date. Section 85(2)(b) of the Housing Act 1985 permits the court to postpone possession for such period or periods as it thinks fit. Nothing in that provision requires an absolute date to appear on the order. This broad discretion corresponded with that recognised under the analogous legislation in Sherrin v Brand, [1956] 1 QB 403.
2. The effect of section 82(2) depends on the date on which the tenant is required to give up possession. An order in the 2001 Form N28 which fixes a possession date and only suspends enforcement ends the secure tenancy on that date, as Harlow District Council v Hall, [2006] EWCA Civ 156, demonstrates. The tenant thereafter occupies as a tolerated trespasser if not evicted.
3. It was nevertheless lawful to make an order which initially postpones possession and provides that the possession date, and termination of the tenancy, will occur only when the court fixes a date on the landlord’s application. Such an order may prevent the adverse consequences of tolerated-trespasser status while the tenant pays current rent and instalments towards the judgment debt.
4. The court endorsed a practical procedure. Before applying to fix a date, the landlord should give the tenant at least 14 days’ written notice, with arrears details and notice of the intended application. The application could normally be decided on the papers with the letter, any response and the rent account. At that stage the court cannot revisit whether it was reasonable originally to make a possession order.
5. The possession and money judgments remained in force. Each claim was remitted to the county court to decide the appropriate terms for postponing possession.

• Court of Appeal (Civil Division) Allowed the tenants’ appeals and remitted the claims for determination of the terms of postponement: [2006] EWCA Civ 656.
• Bristol County Court District Judge Exton and District Judge Frenkel made possession and money orders using the ordinary approach that included a possession date.