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IN THE SUPREME COURT OF JUDICATURE CCRTI 96/087/H

COURT OF APPEAL (CIVIL DIVISION )

Royal Courts of Justice

Tuesday, 4th February 1997

B e f o r e :

LORD JUSTICE HIRST

LORD JUSTICE ALDOUS

LORD JUSTICE SCHIEMANN

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THE LONDON BOROUGH OF BRENT Plaintiff/Respondent

- v -

FLORENCE KNIGHTLEY (DECEASED)

First Defendant and

JANET KNIGHTLEY

Second Defendant/

Appellant

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(Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-831 3183/0171-404 1400

Fax No: 0171-404 1424

Official Shorthand Writers to the Court)

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MISS F. MORRIS (instructed by Messrs Alexander & Partners, London, NW10) appeared on behalf of the Appellant/Second Defendant.

MR. B. McGUIRE (instructed by Messrs T V Edwards & Co., Harlesden, London, NW10) appeared on behalf of the Respondent/Plaintiff.

- - - - - - - -

J U D G M E N T

(As approved by the Court)

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Crown Copyright

LORD JUSTICE ALDOUS: Miss Janet Knightley, the appellant, was the daughter of the tenant of property owned by the London Borough of Brent (the respondent). Upon her mother's death she claimed the right to succeed to the tenancy of that property pursuant to section 89 of the Housing Act 1985. The respondent refused to accept that claim upon the ground that, at the date of the death of the appellant's mother, there was no tenancy to which the appellant could succeed as it had been terminated pursuant to an order made for possession for non-payment of rent. His Honour Judge Maher, sitting in the Willesden County Court, accepted that submission in his judgment of 26th March 1996.

The relevant statutory provisions are contained in the Housing Act 1985. Section 82(2) is in this form:

"Where the landlord obtains an order for the possession of the dwelling house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order."

Section 85(1):

"Where proceedings are brought for possession of a dwelling house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.

(2) On the making of an order for possession of such a dwelling house on any of those grounds, or at any time before the execution of the order, the court may -

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession,

for such period or periods as the court thinks fit."

....

(5) "Where proceedings are brought for possession of a dwelling house which is let under a secure tenancy and -

(a) the tenant's spouse or former spouse, having rights of occupation under the Matrimonial Homes Act 1983, is then in occupation of the dwelling-house, and

(b) the tenancy is terminated as a result of those proceedings,

the spouse or former spouse shall, so long as he or she remains in occupation, have the same rights in relation to, or in connection with, any adjournment, stay, suspension or postponement in pursuance of this section as he or she would have if those rights of occupation were not affected by the termination of the tenancy."

Section 87:

"A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either -

(a) he is the tenant's spouse, or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;

unless, in either case, the tenant was himself a successor, as defined in section 88."

In about 1971 the appellant started to live at 155 Brentfield Road which is a property owned by the London Borough of Brent. The property was subsequently let to her father. Her father died on 21st May 1979 and on 4th June 1979 a tenancy was granted to the appellant's mother. She failed to pay the rent due and on 31st May 1989 an order was made that there be judgment for possession which should not be enforced for 28 days in any event and for so long thereafter as the defendant punctually paid to the plaintiff the arrears of rent by instalments of £2.50 per week in addition to the current rent. The appellant's mother failed to pay between 29th May 1989 and January 1991. The respondents applied for a warrant for possession, but it was suspended on terms that the appellant's mother paid the rent plus £2.50 per week so as to pay off the arrears. She paid until the middle of March 1992. Thereafter, there were only sporadic payments, and in July 1993 the respondents again applied for a warrant for possession. The appellant's mother again applied to suspend the warrant. By order dated 9th September 1993 District Judge Steel suspended the warrant on terms that the late Mrs Knightley paid the current rent plus £10 per week to pay off the arrears of rent, the first payment to be by 16th September 1993. The appellant's mother complied with that order until January 1994 when further breaches occurred. On 6th September 1994 the appellant's mother died. Thereafter the appellant applied to the respondents to succeed to the tenancy of the property. By letter dated 22nd September 1994 the respondents informed the appellant that she could not succeed to the tenancy as no tenancy existed at the date of her mother's death. Upon advice, the appellant maintained her position and refused to vacate the property. The respondents then applied for a warrant for possession. The appellant applied to be joined in the application and the proceedings came before District Judge Cohen, who ordered that she be joined as a second defendant in the action, that the warrant for possession should be stayed and that the application by the plaintiffs for leave to issue the warrant for possession against the second defendant should be refused.

The London Borough of Brent appealed. The appeal came before His Honour Judge Maher. He concluded that there was no lease in existence at the time that the appellant's mother died and therefore there was nothing to which the appellant could succeed. He therefore ordered that the order of the District Judge should be set aside, that Miss Knightley's application for leave to be joined as a second defendant should be refused, and that the plaintiff should have leave to issue the warrant for possession out of time forthwith. The appeal is against that order.

Since the judgment of His Honour Judge Maher of 26th March 1996, the law has been clarified by the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448. In that case Mrs Burrows was granted a secure tenancy of a flat. She fell into arrears in the payment of rent. On 29th January 1992 the Council obtained an order for possession after 14 days. On 5th July 1992 the Council came to an arrangement with Mrs Burrows that she would not be evicted provided that she paid £2.57 a week as a rent charge. She failed to comply with the arrangement and the Council applied for and obtained a warrant for possession that was executed. However, Mrs. Burrows brought an action in which she sought a declaration that she remained the tenant. The House of Lords held that the tenancy ended on the date on which possession had been ordered to be given and that the arrangement had not created a new tenancy. The speeches explained the effect of section 85 of the 1985 Act. Lord Browne-Wilkinson, who gave the leading judgment, said at page 1454H:

"A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: The old tenancy has gone but may yet be revived by a further order of the court varying the date for possession. If the parties reach an agreement as to the continued occupation of the premises by the tenant during that limbo period, what intention is to be imputed to them?

In my judgment little guidance is to be obtained from the cases where a tenant holds over after the termination of an ordinary tenancy where there is no possibility that the expired tenancy can revive. The position in relation to secure tenancies is sui generis. In my judgment, the agreement can and should take effect in the way the parties intend, i.e. it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, i.e. from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute to the parties an intention to create a new tenancy or licence: The retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived. In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict - a ´tolerated trespasser'- pending either the revival of the old tenancy or the breach of the agreed conditions.

Once the effect of section 85 is appreciated, the absurdities which led the Court of Appeal not to accept that Miss Burrows could be a tolerated trespasser disappear. Technically, the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply. But a tenant can at any time apply to the court for an order varying the date on which possession is to be given and thereby retrospectively revive the old secure tenancy, together with its covenants. If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order. Moreover, the tenant will not be a homeless person within section 58(2) of the Act of 1985 because the tenant will be occupying the residence by virtue of any ´rule of law giving him the right to remain in occupation:' See section 58(2)(c). If the tenant were in breach of any of the covenants in the old secure tenancy, Brent could apply to vary the order so as retrospectively to revive the old tenancy together with its covenants."

A similar view was expressed by Lord Jauncey. Having quoted section 85 of the Act, he said at page 1457C:

"Subsections 1(1) and (2) cover three different situations which are in turn reflected in subsection (3). If the proceedings for a possession order are adjourned in circumstances covered by subsection (1) the secure tenancy will continue in force but the court is required by subsection (3)(a) to impose conditions as to payment of any arrears of rent and of future rent, subject always to questions of exceptional hardship and unreasonableness. If the tenant fails to comply with these conditions the landlord will be entitled to go back to the court and seek an order for possession. If during the initial proceedings the court makes an order but postpones the date of possession the tenancy will not be terminated under section 82(2) until any condition imposed under subsection (3) has been breached by the tenant: Thompson v. Elmbridge Borough Council [1987] 1 WLR 1425. However, the court's power to make an order postponing the date of possession is not restricted to exercise on the first application for an order for possession but may be exercised on the application of either party at any time prior to execution of that order and even after the secure tenancy has ended by reason of section 82(2). This is made clear by the words in section 85(2) ´or at any time before the execution of the order': See also Greenwich London Borough Council v. Regan 28 HLR 469,476, per Millett LJ. In such an event the secure tenancy is reinstated or revived subject to any conditions imposed under subsection (3).

However, whereas an order postponing the date of possession necessarily affects the operation of section 82(2), an order staying or suspending the execution of an order for possession on a stated date has no effect on the operation of that subsection but merely postpones execution so long as the conditions of suspension are complied with."

It is necessary to apply that statement of the law to the facts of this case. An order for possession was made on 31st May 1989, suspended for 28 days, and thereafter subject to conditions. Those conditions were not complied with. The result was that the tenancy came to an end on expiry of the 28 day period. Thereafter, warrants for possession were suspended on terms in January 1991 and in September 1993. The terms of the last suspension had not been complied with at the date of the appellant's mother's death on 6th September 1994.

Following the reasoning of the House of Lords in Burrows, the tenancy came to an end when the order of 31st May 1989 became operative. The orders for suspension did not revive the tenancy. They merely postponed execution so long as the conditions of suspension were met and therefore prolonged the possibility of the tenancy being revived. As far as the appellant is concerned, there was, at the date of her mother's death, no tenancy to which she could succeed.

Having regard to the speeches in Burrows, Miss Morris, who appeared for the appellant, did not suggest that the tenancy subsisted at the date when the appellant's mother died. She submitted, as Burrows made clear, that the tenancy was potentially continuous and could be revived and, if revived, the tenancy retrospectively was continued. She submitted that at the date when the appellant's mother died, it was possible to make an application under section 85 to postpone the order for possession which would have revived the tenancy. That, she submitted, was an interest in the property which the appellant's mother possessed at the date of her death. The appellant had succeeded to that interest both as her daughter and because she was, like her mother, a "tolerated trespasser" and was therefore entitled to apply for a postponement order and, if so, the tenancy would revive on her application.

Those submissions are untenable. The right to apply for a postponement of an order for possession is not an interest in land capable of being inherited. Further, the right to apply under section 85 is a right given to the tenant and in subsection (5) to the tenant's spouse or former spouse. Section 87 also gives a right to apply to a person who is qualified to succeed as a tenant under a secure tenancy. That section only applies where there is a tenancy in existence. That was not the case here. To be a tolerated trespasser of the kind contemplated in Burrows, the person must be a trespasser tolerated by the law. The appellant was not such a person. In my view, there is no right given to a person in Miss Knightley's position to apply to revive a tenancy and no tenancy existed at the time when her mother died.

I conclude that the appellant had no right and does not have any right in respect of the tenancy that existed between the respondents and the appellant's mother. I conclude that the judge came to the right conclusion and this appeal should be dismissed.

LORD JUSTICE SCHIEMANN: I agree. The only possible way that the young Miss Knightley could succeed here is under section 89 of the Act. That section only applies where a secure tenant dies. Here, for the reasons given by my Lord, old Mrs Knightley was not a secure tenant when she died. That concludes the argument. I would dismiss the appeal.

LORD JUSTICE HIRST: I agree with both judgments and also dismiss the appeal.