Richmond v Kensington and Chelsea

An extension of a suspended possession order does not necessarily postpone the statutory date for possession or revive a secure tenancy already ended by breach. The order must be construed according to its substance and context. A genuine postponement may waive or forgive the breach and reinstate the former tenancy. An order preserving an unresolved application for a warrant ordinarily shows the opposite intention. If no breach has occurred, an extension merely prolongs the period during which enforcement may arise, while the tenancy remains in existence under the Housing Act 1985.

The respondent local authority sought possession of a secure tenancy on allegations falling within Ground 2 in Schedule 2 to the Housing Act 1985. An earlier possession order was suspended on behavioural conditions and subject to a time limit. Before expiry, the county court extended the suspended order and adjourned the landlord’s application for permission to issue a warrant. A later order extended the suspension again.

On a preliminary ruling, HH Judge Faber held that the orders did not revive the tenancy or extinguish earlier breaches. The tenant appealed, arguing that the extensions postponed the date for possession, revived the tenancy and removed the effect of earlier breaches. The central issue was whether the orders had that legal effect or merely preserved the pending enforcement application and managed the litigation.

The appeal was dismissed. Buxton LJ delivered the leading judgment. Lloyd LJ agreed, and Gage LJ agreed with both judgments.

1. Genuine postponement. Under section 82(2) of the Housing Act 1985, the tenancy ends on the date when possession is to be given under the order. A genuine variation postponing that date under section 85(2)(b) relieves the sanction imposed for the established breach. It therefore operates as a waiver or forgiveness of the breach and reinstates the former tenancy with its terms and covenants. This was the effect attributed to Burrows v Brent LBC [1996] 1 WLR 1448, and recognised in Greenwich LBC v Regan (1996) 28 HLR 469 and Lambeth LBC v Rogers (1999) 32 HLR 361.
2. Construction of the orders. The legal effect of an order depends on its substance and context, not merely its description as an extension. Judge Mackie’s order extended the suspended order while adjourning the application for a warrant. It kept enforcement of the original sanction alive and left open whether earlier breaches had occurred and justified a warrant. It was therefore inconsistent with waiver and did not postpone the date for possession in the sense contemplated in Burrows.
3. Effect of breach or no breach. If the suspension terms had already been broken, the later orders did not substitute a new possession date or alter the tenant’s status. If no breach had yet occurred, the extension merely prolonged the period during which the tenant remained at risk of enforcement. The secure tenancy continued in existence and its status was not immediately changed.
4. Tolerated trespasser. Consistently with the logic of Burrows, a former tenant whose tenancy has ended may remain a tolerated trespasser pending revival of the old tenancy, creation of a new tenancy or actual eviction.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 68, the court dismissed the appeal.
• Central London County Court: HH Judge Faber gave the preliminary ruling under appeal, holding that the extensions of the suspended possession order did not revive the tenancy or extinguish earlier breaches.