London & Quadrant Housing Trust v Ansell

A secure tenancy ends on the date fixed by a possession order under section 82(2) of the Housing Act 1985. Payment of the sums required by the order does not automatically revive it. Where the tenant has not complied with the conditions imposed under section 85(3), the court cannot rescind the order under section 85(4). Once the order has ceased to be enforceable, the powers under section 85(2) to stay, suspend or postpone possession are no longer available. Where no new tenancy has arisen, the former tenant remains a tolerated trespasser and the landlord may withdraw its tolerance by bringing fresh possession proceedings. Such proceedings enforce no earlier judgment and do not circumvent section 85(2). The appeal was dismissed.

London & Quadrant Housing Trust owned the property occupied by Ms Ansell under a secure tenancy granted in 1987. A suspended possession order for rent arrears was made in 2001. The order was breached, the tenancy ended, and Ms Ansell remained in occupation as a tolerated trespasser.

After payments satisfied the sums due under the order, the order ceased to be enforceable by warrant. The Trust then brought fresh possession proceedings, relying on its title and alleging nuisance and annoyance. The county court held that the Trust was entitled to do so and ordered possession on 22 September 2006.

The appeal concerned whether the original order remained enforceable, whether the statutory powers under section 85 of the Housing Act 1985 remained available, and whether fresh proceedings were permissible.

1. Appeal dismissed. Chadwick LJ delivered the leading judgment, with which Lloyd LJ and Stanley Burnton J agreed.
2. Under section 82(2) of the Housing Act 1985, the secure tenancy ended on the date on which possession was required under the 2001 order. The later payment of all sums due under that order did not automatically revive the tenancy. The court relied on Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594.
3. The power under section 85(4) to discharge or rescind the order was unavailable. That power depended on compliance with the conditions imposed under section 85(3), and Ms Ansell had not complied with the stipulated payment terms, even though the total sums were eventually paid. The court considered itself bound by Swindon Borough Council v Aston [2002] EWCA Civ 1850.
4. Once the order had ceased to be enforceable, the powers under section 85(2) to stay, suspend or postpone possession were no longer exercisable. There was no useful execution to stay and no operative date to postpone. The court was bound by the reasoning in Swindon Borough Council v Aston [2002] EWCA Civ 1850.
5. If the original order had remained enforceable, fresh proceedings would have risked circumventing the protection afforded by section 85(2). That was not the position here. The Trust was not enforcing the old order or relying on the original rent arrears. It relied on its title after the tenancy had ended, the order had become unenforceable, no revival was possible, and no new tenancy had arisen.
6. The authorities concerning actions on county court judgments, including Berkeley v Elderkin (1853) 1 E & B 805, Austin v Mills (1853) 9 Ex 288 and Savill v Dalton [1915] 3 KB 174, did not prevent the fresh claim because it was not an action to enforce the earlier judgment. The county court was therefore entitled, and in the circumstances required, to make an order for possession.
7. Obiter. The court noted that a possession order without a specified date for giving possession may provide a more satisfactory approach in future cases. It also observed that the statutory scheme could otherwise produce a stark choice between perpetual irremovability and unqualified insecurity.

1. Court of Appeal (Civil Division) — On 19 April 2007, dismissed the appeal from the possession order made by the Mayor’s & City of London County Court.
2. Mayor’s & City of London County Court — On 22 September 2006, held that the former secure tenant was a tolerated trespasser, that fresh possession proceedings were permissible, and ordered possession within 28 days.