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Enforcing and suspending


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 (see further now Tolerated trespassers). 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.(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

Facts

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.

Decision

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.

Citation

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."
And 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

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! (See further Setting aside). The tenants were trying to extend the date for possession in a claim for disrepair. In any event s13 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.


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