In possession

With fortuitous timing, the Court of Appeal has provided much-needed guidance on the question of the appropriate form of suspended order to make in possession claims against secure tenants. Its judgment in Bristol City Council v Hassan and Glastonbury [2006] EWCA Civ 656 raises substantive points of law and practice of interest to all housing practitioners, and and is already having reverberations in county courts up and down the country.

An urgent need for clarification came about after the decision in Harlow District Council v Hall [2006] EWCA Civ 156 where the Court of Appeal ruled on the legal consequences of a possession order made in the current version of Form N28 - the form of order generally used in county courts nationwide for suspending a possession order on repayment terms. The court held that the tenancy would terminate on the same date as that on which the tenant was obliged to give up possession under Paragraph 1 of the form (typically after 28 days), regardless of whether or not the tenant was complying with the terms of the suspension. His status therefore would inevitably be reduced to that of 'tolerated trespasser' with the concomitant loss of rights associated with a secure tenancy. This put paid to the previous understanding, derived from Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 and Burrows v Brent London Borough Council [1996] 4 All ER 577, that the tenancy ran on until the terms of the suspension were breached. Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 and Burrows v Brent London Borough Council but in both those cases, the court was concerned with an earlier and materially different form of order.

Following Harlow v Hall, most county court judges took the view that the Housing Act 1985 required them to fix a date for possession in the order, and continued to use Form N28. The Department of Constitutional Affairs responded with an interim solution, the policy of which is to keep the tenancy 'alive' until there is a breach, pending publication of a new form of order to be produced by a Working Party chaired by HH Judge John Platt. This interim guidance was adopted by some, but not all, county courts. It recommends an order in the following terms:

'The defendant gives the claimant possession of (address of the property) on or before (date) provided that the date for possession will be postponed and the defendant's tenancy of the premises will continue, so long as the defendant pays the claimant the current rent and in addition the rent arrears and costs by the instalments set out below.'

Fixing a date

The Bristol appeals were transferred to the Court of Appeal for an expedited hearing. The Court held that the statutory scheme of the Housing Act 1985 did not require a court to fix a date for possession when making a suspended possession order. Consequently, courts are not obliged to use Form N28, which in any event is not prescribed by Part 55 of the Civil Procedure Rules.

The Court of Appeal rejected the draft order advocated by the appellants, which would have introduced yet a further hearing into the process in every case where there was a breach by the tenant and where the landlord sought to enforce its order, with all the attendant time, delay and costs that would have entailed, not to mention the impact on other court users.

The Court of Appeal proposed a 'middle ground' to avoid this additional hearing, other than in appropriate circumstances, but which allowed for the tenancy to continue until the order was breached. An order could be made suspending the possession order on terms but without, at that stage, fixing a date for possession. If the tenant breached the terms, the landlord should notify the tenant of its intention to write to the court asking it to fix a date for possession. The court would ordinarily deal with that request on the papers. If satisfied that there had been a breach of the terms of suspension the court would fix a date on which the tenancy would end. A hearing would only be ordered in compelling circumstances. The court could not revisit the question of reasonableness. The Court of Appeal also suggested that the Rules Committee may want to consider the desirability of amending CCR Ord 26, r 17 (2) to enable a landlord to make a combined application to fix a date for possession and to issue a warrant. It is hoped that this very helpful suggestion will be acted upon, and quickly.

Suggested order

The Court of Appeal suggested an order (see box below), which it regards as "lawful and appropriate", but it is clear from the judgment that courts are not obliged to adopt it. They may continue to use the 'interim solution' or, indeed, Form N28 where it is considered appropriate to do so. The writers respectfully suggest that Form N28 will be the form of order to use when the judge wishes to make a suspended order that fixes a date for possession there and then. This might be appropriate in the case of a tenant whose conduct does not justify an outright possession order, but is in need of a 'wake-up call'. After all, the former tenant may make good his default and apply for reinstatement of his tenancy, pursuant to s 85(4) of the Housing Act.

The judgment in Bristol City Council, at least for now, resolves the debate of whether a court is required to fix a date for possession when making an order. The fixing of a date is something itself that can be postponed to another occasion. These cases were concerned with the statutory scheme under the Housing Act 1985. Whether a different analysis could be applied to assured tenancies under the Housing Act 1988 remains an open question. No doubt it is only a matter of time before a court is asked to resolve it.