Suspended and Postponed Possession Orders

Are You Ready to Order?


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

To my mind and in the absence of any guidance in Bristol v Hassan, the paper procedure can have only two purposes:
· 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

Recent Cases on Tolerated Trespassers

In two recent cases, the Court of Appeal has revisited the legal fiction of the ‘tolerated trespasser’, a much criticised creation of the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448. Although the tolerated trespasser has lost the benefits of a secure tenancy, the former tenancy is capable of being revived by a further order of a court varying the date of possession under section 85(2) of the Housing Act 1985 (‘the Act’) or the court discharging or rescinding the order of possession under section 85(4) of the Act.

A tenancy does not revive automatically once the arrears have been paid off (Marshall v Bradford Metropolitan District Council [2002] HLR 22, 428). In cases where the entire judgment debt including court costs has been paid off, a court has no power to revive a tenancy under s. 85(2) of the Act, nor can it rescind a possession order under s. 85(4) if the Defendant has not complied with the conditions a court may impose under s. 85(3) of the Act (Swindon Borough Council v Aston [2003] HLR 42, 610). In Bristol City Council v Hassan [2006] 1 WLR 2582 the Court of Appeal responded to unease about tenants being propelled into a state of limbo, sometimes through no fault of their own, by creating the postponed possession order.

In London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326, which concerned the argument that issuing new possession proceedings amounted to an abuse of process where a previous possession order had been made, the Court of Appeal clarified the implications of Swindon v Aston.

Ms Ansell was granted a secure tenancy on 8 September 1987. On 19 February 2001 a suspended possession order was made against her. The order referred, among other matters, to monies due, the payment terms and the fact that, once Ms Ansell had paid off the entire amount, the order would cease to be enforceable. Ms Ansell breached the terms of the order soon after it was made. Subsequently, due to an unexpectedly early housing benefit payment, she managed to pay off the monies due under the order, including court costs, and on 26 October 2004 her rent account went into credit.

On 10 February 2006 the Housing Trust commenced new possession proceedings against Ms Ansell on the grounds of anti-social behaviour. The Trust started new proceedings because it took the view that the possession order of February 2001 was no longer enforceable. Ms Ansell argued that, because a previous possession order was in existence and still enforceable, it was an abuse of process to issue new possession proceedings. In order to enforce the 2001 possession order, Ms Ansell submitted, a warrant of possession had to be issued and executed. The judge at first instance came to the conclusion that he was entitled to make an order for possession because the February 2001 order had ceased to be enforceable, as all the monies due under the order, including costs, had been paid.

On appeal, it was common ground between the parties that Ms Ansell was a tolerated trespasser. The issue to be determined by the Court was whether it was open to the Trust to commence new proceedings on the basis that Ms Ansell’s occupation as a trespasser was no longer tolerated and that she therefore had no right to remain in occupation. The Court held that if a court’s powers under section 82(2), (3) and (4) of the Act – the extended discretion of a court to postpone a date of possession and to stay or suspend an order for possession – had still been exercisable, the proceedings would indeed amount to an abuse of process. However, Ms Ansell’s case was indistinguishable from Swindon BC v Aston [2003] HLR 42, 610: the powers under s. 85 of the Act were no longer exercisable when the present proceedings were commenced because, in paying off both her arrears and court costs, Ms Ansell had complied with the terms of the February 2001 order, and it had ceased to be enforceable. It followed that the Trust’s new proceedings against Ms Ansell were not misconceived and that the judge had been correct in making an order for possession.

In the course of argument, the court was invited to deal with the Claimant’s contention that she was a permanent tolerated trespasser and that the Trust could take no step to bring her occupation of her property to an end. The Court firmly rejected such an argument, holding this would, in effect, amount to Ms Ansell being irremovable in law. There was no ‘legislative policy’ compelling such a result.

The Court expressed unease that, following Swindon v Aston, Ms Ansell had lost the protection afforded under s. 85(2) of the Act because the whole of her monies due under the February 2001 order were paid off without her concurrence or knowledge by changes in the payment pattern of her housing benefit payments. The Court took the view that Swindon v Aston provided a ‘trap for former tenants and their advisers’ who comply with the order without first making an application to the court to revive the tenancy under s. 85(2) of the Act. This problem was compounded by the fact that unless the former tenant had strictly complied with the terms of the order, s/he could not seek rescission of the order under s. 85(4). Even though the Court accepted that Swindon v Aston provided a route whereby a new tenancy could come into existence, any new tenancy would not be a secure tenancy. Further, even though making a possession order in the terms suggested in Bristol v Hassan could avoid the problems which arose in Ms Ansell’s case, the Court expressed the view that it was desirable for both landlord and the former tenant to revert to the ‘position’ prior to the order being made, or taking effect, and for the court to continue to be able to exercise its discretionary jurisdiction under s. 85.

White v Knowsley Housing Trust [2007] EWCA Civ 404, which falls under the Housing Act 1988, highlighted the increased number of tolerated trespassers resulting from this regime. The Court of Appeal has held that where a possession order is made using the ‘old’ Form N28, the tenancy came to end on the date an assured tenant had to give up possession, even though the order may have been suspended, echoing last year’s decision in Harlow DC v Hall [2006] 1 WLR 2116 relating to secure tenancies.

The Court was alive to the problems that arise when a secure tenant becomes a tolerated trespasser, such as neither the former landlord nor the former tenant being able to enforce the covenants of the former tenancy, even though the occupier remains in a tenant-like condition.

In view of the many criticisms that have been levelled at the tolerated trespasser, and which led to the creation of the postponed possession order in Bristol v Hassan, it is surprising that in this judgment the Court appears to express unease that in Bristol v Hassan the arguments against the tolerated trespasser had been accepted without considering whether there should be situations where a tenant loses the benefit of a secure tenancy. In White the Court emphasised that the arguments do not go all one way. It would be problematic if, despite having defaulted on her obligations as a tenant, Mrs White retained the benefits and privileges of a tenant. Policy did not dictate such an outcome.

White may be seen as indicating that, despite all its shortcomings, the ‘tolerated trespasser’ continues to be seen as an appropriate sanction for breaches of the tenancy agreement. The difficulty is determining the precise scope of this sanction, pending reform or even abolition of a problematical legal fiction.

Barbara Zeitler