White v Knowsley Housing Trust & Anor

An assured tenancy does not necessarily continue until possession is actually delivered after a possession order. Where the court makes an immediate order, the order terminates the tenancy. Where execution is suspended or possession postponed, the result depends on the proper construction of the order. A standard form N28 order requiring possession by a stated date, while suspending enforcement on conditions, terminates the tenancy on that date if its terms remove the tenant’s right to exclusive possession. A reference to payment of the current rent does not preserve the tenancy. A differently drawn order may preserve the tenancy through a postponed date and avoid tolerated-trespasser status.

Mrs White became a local-authority tenant in 1993. Following the transfer of the housing stock to Knowsley Housing Trust in 2002, her tenancy became an assured tenancy under the Housing Act 1988. After rent arrears accrued, District Judge Sykes made a suspended possession order requiring possession by 6 July 2004, subject to weekly payments towards the arrears and current rent.

Mrs White remained in occupation and later applied for a declaration that she remained an assured tenant, principally to support her right to buy under Part V of the Housing Act 1985. HHJ Mackay dismissed the application. The Court of Appeal heard that appeal together with an out-of-time appeal against the original possession order. The central issue was whether, and when, the possession order terminated the assured tenancy.

The Court of Appeal unanimously dismissed both appeals. Lord Justice Buxton gave the leading judgment. Lord Justice Longmore agreed, although he observed that, without authority, he would not initially have construed the order as terminating the tenancy. Sir Martin Nourse agreed with both judgments.

1. The suspension and postponement powers in section 9(2)–(4) of the Housing Act 1988 are facultative. Their effect depends on the terms and nature of the tenancy and the order made. The Rent Act reasoning in Sherrin v Brand [1956] 1 QB 403 could not simply be applied because a Rent Act statutory tenancy differs fundamentally from an assured contractual tenancy.
2. An immediate order for possession terminates an assured tenancy when made. Artesian Residential Developments Ltd v Beck [2000] QB 541 supported that conclusion. The absence of an equivalent to section 82(2) of the Housing Act 1985 did not mean that an assured tenancy continued until actual delivery of possession.
3. The N28 order required Mrs White to give possession by 6 July 2004. Its effect was determined objectively. After that date she retained only a conditional right to remain, not the exclusive right of possession characteristic of a contractual tenancy. The reference to payment of current rent merely quantified the sum required for continued occupation and did not extend the tenancy. The tenancy therefore expired on 6 July 2004. A differently drawn order could produce a different result.
4. The Court recognised that the result created tolerated-trespasser problems. Policy arguments could not justify a construction unsupported by the statutory language and order. The two-stage approach discussed in Bristol CC v Hassan [2006] 1 WLR 2582 remained available, including for assured tenancies, and the relevant practice direction should be extended urgently.
5. The out-of-time appeal against the original order was also dismissed. Extending time for permission did not prevent the court considering delay. Reopening the order after more than two years would create uncertainty and potential unfairness, and dismissal on delay alone was justified. The intervener’s proposed right-to-buy point was not determined because it was not an issue between the parties.

Court of Appeal (Civil Division) — [2007] EWCA Civ 404, 2 May 2007: both appeals dismissed.

• Liverpool County Court — District Judge Sykes made a suspended possession order on 8 June 2004. HHJ Mackay dismissed Mrs White’s later application for a declaration that she remained an assured tenant and granted permission to appeal.