Court of Appeal

Published May 15, 2007

Knowsley Housing Trust v White

Before Lord Justice Buxton, Lord Justice Longmore and Sir Martin Nourse

Judgment May 2, 2007

Where, in the case of an assured tenancy governed by the Housing Act 1988, the court granted an order for possession using County Court Form N28 but suspended execution on terms, the tenancy expired on the last date stated for possession, and the occupant remained thereafter as a tolerated trespasser.

The Court of Appeal so held in a reserved judgment dismissing the appeals of Mrs Julie White from:

(i) an order of District Judge Sykes in Liverpool County Court on June 8, 2004, under section 5(1) of the 1988 Act, granting Knowsley Housing Trust possession, on or before July 6, 2004, but with enforcement suspended on terms, of the relevant premises originally occupied by Mrs White as an assured tenant; and

(ii) an order by Judge Mackay, in the same court on September 14, 2006, dismissing an application by Mrs White for a declaration that she remained an assured tenant pending execution of the order, in circumstances where she sought to exercise her ostensible right to buy.

Mrs White had remained in possession and paid over certain moneys equivalent to rent under the terms of the suspended order.

The grounds of appeal were, inter alia, that an assured tenancy that was made the subject of an order for possession came to an end only when possession was given up in pursuance of the order.

Mr Edward Bartley Jones, QC and Mr Michael Singleton for the housing trust; Mr Jan Luba, QC and Mr Adam Fullwood for Mrs White; Mr Christopher Baker for the Secretary of State for Communities and Local Government, intervening.

LORD JUSTICE BUXTON said that the 1988 Act had no provision equivalent to section 82(2) of the Housing Act 1985 dealing with secure tenancies.

Moreover, in neither Harlow District Council v Hall ([2006] 1 WLR 2116) nor Bristol City Council v Hassan) ([2006] 1 WLR 2582) was section 82(2) of the 1985 Act used other than as a convenient statement of a binding statutory rule as to the date of termination of a secure tenancy. The question when the tenancy would have terminated in the absence of that statutory rule was not in issue.

Again, in Thompson v Elmbridge Borough Council ([1987] 1 WLR 1425) the court did not address the issue how the case would have been decided absent section 82(2).

Accordingly, the correct construction of a similar scheme for assured tenancies, containing no direct equivalent to section 82(2), could not be derived with certainty from those cases.

Neither did section 5(1) of the 1988 Act address the issue addressed by section 82(2) of the 1985 Act of the date on which the assured tenant was to give up possession; and it was difficult to see why it followed that that date had to be the date of surrender of possession just because a different date was specified for secure tenancies by section 82(2).

However, the effect of section 5(1) of the 1988 Act was addressed in Artesian Residential Developments Ltd v Beck ([2000] QB 541), where the order for immediate possession was held to have terminated the tenancy, although in that case the order was not suspended.

Having regard to the authorities and the terms of the N28 possession order itself, the assured tenancy in the instant case expired on July 6, 2004, the last date for giving possession; and Mrs White remained in occupation as a tolerated trespasser during the period of suspension thereafter. She had also lost the statutory right to buy relied upon.

Those results would not necessarily be the same in the case of orders differently drawn.

Lord Justice Longmore gave a concurring judgment and Sir Martin Nourse agreed with both.

Solicitors: Anthony Collins LLP, Birmingham; Stephensons, St Helens; Treasury Solicitor.

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