Les Entrées
The purpose of this article is to assist readers to know what to ask for or to know how to reply when a case comes to court which engages the extended discretion in s85(2) of the Housing Act 1985 or s9(2) of the Housing Act 1988.
The said sections may be used by a court on making an initial possession order, to give the defendant an opportunity to mend his ways. Thereafter, the sections may be invoked by a tenant or tolerated trespasser up to execution of the possession order. Unfortunately, forensic analysis of standard court forms has led to confusion as to the meaning of the orders which emanated from courts. Commentary on this history may be found in the White Book[1] or the judgment in Bristol v Hassan[2]: I intend to deal only with the current position.
Les Plats
There are now two standard forms in use: the 1996 N28 and the N28A. These can be used to make three types of orders:
· an outright order (N28),
· a suspended possession order (N28)
and in the case of rent arrears only,
· a postponed order (N28A).
(In the pro-forma used by the Central London Civil Trial Centre and others, these are termed ‘outright’, ‘postponed’ and an ‘order following Bristol v Hassan.’)
An outright order is an order to give up possession without conditions or further process.
A suspended possession order fixes a date for possession but provides that that date shall be postponed for as long as the conditions specified by the judge are complied with. On breach, the landlord is entitled to enforce forthwith: the court does not normally see the case again unless the defendant applies.
A postponed order, or ‘order following Bristol v Hassan’, does not fix a date and introduces a paper procedure by which the landlord must apply for a date once there has been a breach and he has taken steps consistent with the rent arrears protocol.
La Méthode
An outright order will be used with Assured Tenancies where 1988 Act mandatory grounds succeed or with any residential tenancy where the circumstances do not warrant the exercise of the court’s delaying powers under the said ss 9 or 85. I will not discuss it further here.
In non-arrears cases, a suspended possession order aims to effect an immediate improvement in the conduct of the tenant while keeping the tenancy alive with obvious benefits to the tenant and one important one to the landlord: the tenancy conditions remain so can be enforced by further order[3]. The means by which this is done is that until the event specified in the order, the date for possession does not arise so the tenancy does not determine[4]. The reason for this form of order coming into being was to avoid the inadvertent creation of tolerated trespassers in relation to which none of the above advantages applied.
The court will attach conditions to the order (limited only by s85(3)(a), breach of which will lead to the date for possession being fixed. But it may fix any conditions (s85(3)(b)) including it seems to the operation or enforcement of the order. Practitioners might usefully employ their imaginations here, one suggestion being to use the paper procedure borrowed from the N28A form (see below). In my view, the court could do this in non-arrears cases but probably should not unless exceptional elements of the case justify further judicial scrutiny prior to enforcement. Other imaginative suggestions might succeed however.
In arrears cases, postponed orders may be made on form N28A, whereby:
i) there is no date for possession on the order;
ii) in the event of breach the landlord must comply with conditions taken from the rent arrears protocol[5] and then may apply for a date for possession (including on the face of the application confirmation of whether or not there is any outstanding claim by the defendant for Housing Benefit[6]);
iii) the court will normally consider that application on the papers but may order a hearing and;
iv) [making occasional practice standard] the order shall cease to be enforced once the judgment debt (arrears and costs) is satisfied.
The tenancy therefore survives breach and continues until it expires on such date as the court can be persuaded to fix, so again, the status of tolerated trespasser is avoided unless and until the court wishes it to come about.
In most arrears cases a postponed order will normally be made, but it need not be. For instance, where there is evidence of wilful refusal to pay or of the tenant having access to funds which would allow him to pay the arrears off, the court might be persuaded to give a suspended order in order to get the tenant to pay. And in such a case, form N28 can still be used for arrears cases.
In addition to these orders in new proceedings, it will happen that existing tolerated trespassers come before the court (those whose dates for possession have passed by whatever means) asking for further indulgence under s85 or 9. Because of s85(3) the court may: refuse to grant the application; postpone to a fixed date as in the old N28 (...’possession to be given on [date] suspended on condition [XYZ]’...) thereby giving rise to a further tolerated trespass; make a suspended possession order per the current N28 or in arrears cases; use an N28A to make a postponed order. I doubt the second will ever be used so over time I anticipate that tolerated trespass will be limited to those who have yet to invoke s85; those awaiting imminent eviction (because the date for possession has been fixed by conduct or by the court, and subsequently passed) and; those in the extraordinary position of Miss Ansell.
Les Fromages
· it allows the court to refuse an application if the arrears protocol steps (or other conditions the court gave on making the order) have not been complied with
· it introduces an automatic consideration of whether the court should use its s85 or 9 powers again – to which end it might wish to order a hearing. (Formerly, post-breach the onus was on the tenant to seek relief per s85 or 9.) The court’s discretion on the face of the order whether to give a date for possession is in reality whether further to postpone it.
Both these are straightforward business for county courts which need no further elaboration, save to note that the court on such an application is specifically forbidden from considering whether it was reasonable to make the initial order[7]. Irrespective of the benefits to tenants in arrears, in the absence of Parliament indicating its intent I question whether it is right in principle for the s85 procedure to become automatic (hence my putting this in the cheese course). That said, I cannot interpret the development in any other way and practitioners should be alert to it.
[1] 3A-379
[2] [2006] EWCA Civ 656
[3] Manchester v Finn [2002] EWCA Civ 1998
[4] Housing Act 1985, s82(2)
[5] the conditions will be specified in the order: the protocol may be found at White Book C11
[6] Practice Direction 55 paragraph 10.6
[7] Bristol v Hassan and Practice Direction 55 para 10.10
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