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OSLO PORTER v SHEPHERDS BUSH HOUSING ASSOCIATION

The decisions in Marshall v Bradford MDC [2001] EWCA Civ 594, [2002] HLR 22 and Swindon BC (formerly Thamesdown BC) v Aston [2002] EWCA Civ 1850, [2003] HLR 42 on the interpretation of the Housing Act 1985 s 85(4) were good law and were not undermined by the reasoning of the Court of Appeal in Payne v Cooper [1958] 1 QB 174.

1 April 2008

The appellant (P) appealed against a ruling upholding a decision of the district judge to dismiss his application under the Housing Act 1985 s 85(4) for the discharge or rescission of a suspended possession order made in favour of the respondent landlord (S). The suspended possession order had been made in 1997 after P, a secure tenant, had fallen into arrears of rent. P failed to comply with the conditions of the order, whereupon his secure tenancy came to an end. However, he remained in occupation of the relevant property, and in 2006 he paid off the rent arrears. Dismissing P’s application under s 85(4), the district judge held that P was a tolerated trespasser and that the court was bound by the decision in Swindon BC (formerly Thamesdown BC) v Aston [2002] EWCA Civ 1850, [2003] HLR 42, in which Marshall v Bradford MDC [2001] EWCA Civ 594, [2002] HLR 22 was cited. In Marshall and Aston the court held that the power to discharge or rescind conferred by s 85(4) arose only if the...

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