Background

Ms White, who made the appeal, was an assured tenant of Knowsley Housing Trust (Knowsley). A suspended possession order (SPO) was made against her in 2004, which stated that she was to give up possession of the property by 6 July 2004. Ms White sought a declaration that she remain as the tenant of the premises, primarily because she wished to pursue a preserved right to buy that had been refused on the basis of her SPO.

Initially, Liverpool County Court found in favour of Knowsley and dismissed Ms White’s application.

Ms White appealed to the Court of Appeal on the basis that her tenancy continued until possession of the property occured, either by her voluntarily leaving the property or upon the exercise of an eviction warrant. The Court stated that assured tenancies end when a possession order is made containing a date for possession, such as SPOs, and that from that date onwards, the tenant becomes a tolerated trespasser.

Outcome

Importantly, the Court confirmed postponed possession orders (PPOs) can be made against assured tenants. The effect of a PPO is that the tenancy ends when the court fixes the date for possession, following the tenant’s breach of the terms of postponement.

The Court of Appeal also stated that, as a matter of urgency, Section IV of the Practice Direction to CPR 55 needs to be amended to include reference to assured tenancies.

The Court found that it was bound by the decision of Harlow DC –v- Hall [2006] despite the fact that there are differences in the wording of the Housing Act 1985 and the Housing Act 1988.

The Court also found that whilst there is no previous authority on this point, it would be inconsistent “with basic principles of landlord and tenant law to hold that a tenant retained a contractual tenancy after they had lost the right to possession by being ordered to give it up to the landlord”.

The Court of Appeal refused Ms White permission to appeal to the House of Lords and awarded costs to Knowsley.

Comment

Liz Hargreaves, solicitor at Cobbetts LLP, comments: “This case is important at it confirms, despite the absence of wording in the Housing Act 1988, assured tenancies will end on the date specified in any Court order for possession and thus assured tenants can become tolerated trespassers.

The case does not prevent SPOs from being granted by the Courts and indeed Longmore LJ stated that:

“If a tenant wishes to retain [their] tenancy until [they] are evicted, [they] can always ask the Court not to insert in the Order any date on which [they] are to give up possession. It would be in the discretion of the Court whether to make an Order in that form”.

However, in an effort to be consistent, I believe the Court will grant PPOs to both secure and assured tenants thereby preventing tenants from becoming tolerated trespassers.

Landlords of assured tenants will need to ensure when carrying out their housing management functions they check as a matter of course, for any previous possession orders when tenants apply to exercise rights such as exchange or assignment, succession, preserved right to buy or the enforcement of the landlords repairing obligations”.

For advice on this matter or any implications arising from the case then please contact either:

Yetunde Dania
0845 404 2571
yetunde.dania@cobbetts.com

Neelam Sharma
0845 404 2565
neelam.sharma@cobbetts.com