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Tolerated trespasser

Litigation Letter

Tolerated trespasser

Wandsworth LBC v Whibley CA TLR 25 November

Section 85(2) of the Housing Act 1985 permits the court when making a possession order to stay or suspend its execution or to postpone the date of possession, in either case for such period or periods as the court thinks fit, upon mandatory conditions as to rent arrears and discretionary conditions as to any other matters. If the conditions are complied with, subsection (4) allows the order to be discharged or rescinded, but even a single act of non-compliance with a condition puts that step beyond the court’s reach. It is for this reason that a postponed possession order has come to be used as a less problematical alternative to a suspended order. A postponed possession order terminates the tenancy, but withholds possession, in many cases indefinitely leaving both the landlord and tenant in a limbo in which the tenant has been aptly characterised as a tolerated trespasser, with no affirmative rights, but a status of irremovability. That unsatisfactory situation is avoided by a postponed order, which preserves the tenancy ending discharge of the order, further postponement or the fixing of a date for possession. That was what had happened in the present case. The landlord contended that save in quite exceptional cases of which this was not one, county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order. The landlord had proved arrears and nuisance and had obtained a possession order postponed on specified conditions, but the landlord had not yet proved a breach of one or more of those conditions and without such proof it could not ask the court summarily to fix a date for possession. The judge was manifestly in no position to resolve the matter summarily in the claimant’s favour and an adjournment had been unavoidable.

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