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Enforcing, suspending, setting aside
Warrant for possession
First date warrant can be issued
Tuohy v Bell
[2002] EWCA Civ 423
A warrant cannot be issued before the date on which it is ordered that possession be given up. However, in this case, although the warrant was premature and therefore a nullity the CA nonetheless upheld the prison sentence against the defendant. It did so because he had refused to comply with the possession order and had told the judge that he had no intention of complying with the order. That was a contempt that justified the imprisonment.
Enforcing old possession orders
London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326
The issue
If a landlord has a possession order that it can no longer enforce, because the order is worded so as to prevent enforcement when arrears and costs have been paid off, is it entitled to issue a fresh possession claim? Held: Yes.
Facts
L had obtained a suspended possession order in 2001. Soon afterwards T failed to pay her rent and arrears as ordered.
In 2004 T paid off all her arrears and costs but L wanted to evict her due to her anti-social behaviour. The significance of paying off her arrears and costs becomes apparent from looking at paragraph 3 of the suspended possession order that was made in 2001:”You must pay the claimant the total amount of £1,169.15 by instalments of £2.65 per week in addition to the current rent. The current rent is £84 per week. … When you have paid the total amount mentioned the claimant will not be able to take any steps to evict you as a result of this order.” (emphasis added). The effect of the order for possession was that T remained in her flat thereafter as a trespasser. However, the wording of the order also prevented L from enforcing the order for possession. L sought to overcome this problem by issuing fresh possession proceedings, based on the fact that she was a trespasser. T argued that this was impermissible given the wording of the possession order and the fact that she had paid off all her arrears and costs.
The decision
The Court of Appeal characterised T’s argument as meaning that she had become a perpetual tolerated trespasser; that ‘although in occupation as a trespasser she is, in law, irremovable’ (para 40). Not surprisingly the Court dismissed this argument and drew attention to the way that T had misunderstood what L was doing. It was not seeking to enforce the 2001 possession order. It was merely asserting in fresh proceedings its right to possession on the basis that it held the freehold and T was a trespasser (para 41).
Comment
It might be thought that this case gives any landlord the right to issue a fresh possession claim against any person who has breached a suspended possession order. If the landlord could do this then it would be able to circumvent the defendant’s ability to apply under either the Housing Act 1985 or 1988 (sections 85(2) and 9(2) respectively) to suspend execution of the warrant. However, the Court noted that there would be a ‘powerful reason’ to prevent an attempt by a landlord to circumvent the statutory protection that applies to orders made under the Housing Acts by issuing fresh proceedings against trespassers (para 38). What made T’s case different was the fact that the order that had been obtained under the Housing Act was no longer enforceable.
It should be noted that the wording of Form N28 (suspended possession order) that was used in this case changed later in 2001 with the deletion of the words that are italicised above. So the problem posed in this case may not arise that frequently.
However, a similar issue is likely to arise with landlords who have failed to enforce possession orders within six years. This lapse of time means that the court’s permission to enforce is required (CCR Ord 26 r5). In these circumstances this type of situation could arise because the court’s permission to enforce after six years will not readily be obtained (Patel v Singh [2002] All ER 227, CA). In these circumstances the landlord should seek the court’s permission to enforce and if permission is refused then it may issue fresh proceedings on the basis that the defendant is a trespasser.
This case and others illustrates the problems that can be created if possession orders are allowed to endure for several years. This may happen in a number of ways such as when (a) suspended possession orders are made when the circumstances require outright orders (b) landlords do not enforce promptly breaches of suspended orders or (c) judges suspend warrants in inappropriate circumstances.
There is also a trap for tenants highlighted by the case. Chadwick LJ at para 52:”On a more general basis, as it seems to me, the decision in Swindon Borough Council v Aston - that the powers under section 85(2) of the 1985 Act are not exercisable once a possession order ceases to be enforceable on payment of all the monies which are to be paid thereunder – provides a trap for former tenants and their advisers who do pay what the order requires them to pay without first making an application to vary the order by postponing the date of possession. The problem is compounded if – as will frequently be the case – the former tenant has not complied strictly with the conditions imposed by the order; and so cannot seek discharge or rescission of the possession order under section 85(4) of the Act.” (This case report was kindly provided by Jon Holbrook, barrister at 2-3 Gray’s Inn Square and chair of the Social Housing Law Association, www.shla.org.uk)
Article: “Rethinking Possession Orders” by Jon Holbrook and Nick Billingham – More ideas on how to tackle the various problems that arise in possession claims (New Law Journal, 13 April 2007) For full article click here.
Suspending warrants
Appeals from the district judge against suspended orders
London Borough of Ealing v Richardson
[2005] EWCA Civ 1798
This was a very bad case where the district judge nevertheless suspended the warrant for possession – for the ninth time in nine years. The county court judge overturned the suspension. However, on a further appeal to the CA the DJ’s decision was restored. This was because the circuit judge dealt with the appeal as a rehearing. He should not have done so. He should have treated it as a review. Under CPR 52.11(1)(b) an appeal court can only hold a re-hearing where "the court considers that in the circumstances of an individual appeal it would be in the interests of justice to do so." The case demonstrates the width of a district judge’s jurisdiction. Ward LJ:"It is, in the end, very difficult to see precisely what injustice the judge did find had occurred or what interests of justice actually required this re-hearing. It is, after all, to be firmly accepted that a re-hearing is an exception to the general rule; that some injustice must have occurred, and a simple failure to put one's case before the first court is not ordinarily to be cured by a re-hearing. If fresh evidence is to be put in, permission is sought for it. There are the usual obstacles to calling fresh evidence that could have been made available to the court below, as this evidence could have been, and I am afraid that, one way or another, Judge Oppenheimer took his eye off CPR 52.11(1)(b), to which, in fairness to him, he was not specifically directed, although the opening remarks of the solicitor had been by way of reference to the justice of the case.” Arden LJ:"… the case which the judge had to consider turned on the exercise by the District Judge of her discretion under section 85 of the Housing Act 1985. There is a substantial difference between an appeal by way of a review of the order of the District Judge in these circumstances, and an appeal by way of re-hearing. If it is an appeal by way of review, then the function of the appellate court is limited to seeing whether the exercise of discretion was wrong in principle or went beyond the generous ambit within which disagreement is possible.”
Suspension after execution - secure tenancies
Dunn v Bradford Metropolitan DC; Marston v Leeds City Council
[2002] EWCA 1137; [2002] 32 EG 97; [2003] HLR 15.
It is not possible to postpone a date for possession under s85(2) once the tenant has left the premises voluntarily, whether following upon the issuing of a warrant for possession or not. Fairly obvious you might have thought! The tenants were trying to extend the date for possession in a claim for disrepair. Section 13 of the Supply of Goods and Services Act 1982 does not apply to a council tenancy. A council in recognising a tenant's right to occupy is not carrying out a service but merely acknowledging existing property rights.
Setting aside
Setting aside possession orders
Estate Acquisition and Development Ltd v Wiltshire
[2006] EWCA Civ 533
An order forfeiting a lease of residential premises for non-payment of service charges was made. The house was an unencumbered leasehold property worth more than £140,000. The debt was £849.21. The defendants were not living at the property and so were unaware of the proceedings, that were properly served. When they became aware of the order they applied to have it set aside. In order to be successful they needed to satisfy the three requirements set out in CPR r.39.3(5):“(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant – (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial.” The issue in the case was whether or not the defendants had a “good reason” for not attending the trial. Counsel for the landlord sought to argue that the defendants should have had a system in place to make sure that any litigation came to their attention. It was no good simply stating that they did not know of the trial date. This argument was rejected and the order was set aside. Dyson LJ at para 24:”A person is under no obligation to make himself amenable to potential claims of which he has no notice. It must follow that, if he fails to attend a hearing in proceedings of which he is unaware, he has a good reason for failing to attend.”
Delay in applying to set aside order – abuse of process
Abbey National plc v Miller
[2007] EWCA Civ 138
This was a mortgage possession claim:Year 1: Abbey National (“AN”) brought standard arrears-based mortgage possession proceedings and obtained a suspended order for possession.
Year 11: Following further default, AN renewed its application for possession. The borrower did not dispute the validity of the suspended order, but challenged the account. An account was ordered
Year 15: Following further proceedings, the borrower appealed, disputing the validity of the original suspended order on the ground that it had not been sealed and had therefore not been perfected. The judge dismissed the appeal. M appealed.
Held: There was an issue of fact requiring evidence as to whether or not the original order had been perfected. However, even if there was evidence that the order had not been validly made, it was far too late to challenge it. The parties had proceeded on the basis that the order was valid and it would be an abuse of process to take the point that the order was not valid.
Setting aside warrants - oppression
The basic principles
The principles to be applied when setting aside a warrant after execution are that this will only occur where (1) the order on which it is issued is itself set aside, (2) the warrant has been obtained by fraud, or (3) there has been an abuse of process or oppression in its execution (Jephson Homes v Moisejevs (2000)).
Principles re-affirmed
The CA re-affirmed these principles in Circle 33 Housing Trust Ltd v Ellis [2005] EWCA Civ 1233.
This case had a chequered history. The possession order was made by the District Judge when the tenant did not turn up at court. The warrant was executed and the defendant only then applied to the court, to set aside the warrant. The application came before the county court judge. This was a housing benefit case and at the date of that hearing there were effectively no arrears and it was reasonably plain that future Housing Benefit would have been paid if it were not for the fact that eviction had taken place. However, the county court judge took the view that there was no fraud or oppression and that the failure to get to grips with the housing benefit problem was that of the defendant. He therefore refused the application.
There was then an appeal to a High Court judge who took a completely different view. He considered that the fault lay with the local authoritys inefficient and irrational behaviour in relation to the housing benefit and that the landlord should have contacted the authority before evicting. He thought it was one of those rare cases where execution of the warrant was oppressive.
There was then a second appeal to the CA by the landlord. Second appeals are highly unusual but the CA gave permission for the appeal and granted it because the High Court judge was plainly wrong. The CA re-affirmed and applied the principle stated above, ie. that a warrant will only be set aside after execution if the order itself is set aside, there is fraud, abuse of process or oppression. Sympathy with the tenant is not enough. Chadwick LJ continued at paragraph 26 and 27 of the judgment:"25 In this important and sensitive field of social housing, Parliament has prescribed a regime which recognises that a tenant should not be evicted from his home if some alternatiove solution reasonable in the interests of both the landlord and the tenant can be found. It has provided the opportunity to seek such an alternative solution through the courts right up to the point of eviction. The courts role does not cease when it makes a possession order. The jurisdiction to stay or suspend the order, or to stay or suspend execution of the warrant, is exercisable at any time before execution of the order. The provisions of section 9(2) of the Housing Act 1988 mirror those .. in s85(2) of the Housing Act 1985.
26 But Parliament has recognised that there must come a time when the landlord is able to relet the property in the knowledge that a former tenant can no longer return to the court with proposals for a solution which enables him to resume occupation. The scheme in the Housing Acts, provides that that time comes when eviction has taken place. Thereafter the statutory scheme provides that the landlord can relet in the knowledge that the scheme for protecting the former tenant has run its course." Misconduct by the court
Rendham Holdings Ltd v Patel
[2002] All ER(D) 132; Legal Action, December 2002, p21.
T applied for a stay of execution of a possession order pending appeal. Due to an error in the court office the application was not put before a judge. A warrant for possession was issued and executed. T successfully applied to have the warrant set aside on the basis of oppression and obtained relief from forfeiture. Ls appeal to the High Court was unsuccessful. T was entitled to believe that a warrant would not be issued and enforced before considering the application for the stay.
Stay pending application - order executed - mortgage case - allegation that sale will be at undervalue
Da Rocha-Afodu v Mortgage Express
[2007] EWHC 297 (QB)
Summary
What happens if a warrant for possession has been enforced, the property is on the market for sale, but the borrower wants to go back in?
Facts
Following protracted proceedings, the lender obtained an order for possession and issued a warrant due for execution on 29 September 2006. On the 28 September 2006 the borrowers applied for a suspension. The court refused the application. The warrant was executed and possession was taken.
On 28 December 2006, the borrowers filed an Appellant’s Notice, out of time, seeking permission to appeal the refusal. They sought to challenge the judge’s findings of fact and his exercise of discretion. They also applied for a stay of execution and an order that they be allowed back into possession in the meantime. Apart from hardship, they also cited issues about the disposal of personal property and the prospect of a sale at an undervalue.
On 16 January 2007 the court granted a stay of execution. On 26 January 2006 the lender applied to lift the stay.
At the substantive hearing on 14 February 2007, the court had to determine the borrowers’ application to be allowed back into the property and the lender’s application to lift the stay.
The principal ground relied on by the lender was that the court had no jurisdiction to grant a stay, save in exceptional circumstances which did not apply, in a case where an eviction had already taken place (Cheltenham & Gloucester Building Society v Obi (1996) 28 HLR 22).
The borrowers submitted that the court had jurisdiction on the basis that they had a reasonable prospect of success and that without a stay, they would be ruined (Linotype-Hell Finance Ltd v Baker [1993] 1 WLR 321).
Held
Cheltenham & Gloucester v Obi applied. The court could not set aside or suspend a warrant for possession after execution unless either (1) the possession order on which it was issued was itself set aside, (2) the warrant had been obtained by fraud, or (3) there had been an abuse of process or oppression in its execution.
On the facts, none of the exceptions applied. Marketing the property at an alleged undervalue was not oppression. Nor was there any abuse of process in respect of the judge’s earlier findings of fact:“The warrant has been executed and the court has no jurisdiction to grant a stay in the circumstances of this case. Still less does the court have any jurisdiction to order the [lender] to permit the [borrowers] to re-enter the property by way of interim measure pending the hearing of an application for permission to appeal out of time”. Stay lifted; borrowers’ application refused.
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