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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594 (27 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/594.html Cite as: [2001] EWCA Civ 594, [2002] HLR 22, [2001] 19 EGCS 140 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(His Honour Judge Altman)
Strand, London, WC2A 2LL Friday 27th April 2001 |
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B e f o r e :
LORD JUSTICE CHADWICK
and
SIR CHRISTOPHER STAUGHTON
____________________
| MARSHALL |
Appellant |
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| - and - |
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| BRADFORD METROPOLITAN DISTRICT COUNCIL |
Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr John Holroyd (instructed by Bradford Metropolitan District Council for the Respondent)
____________________
Crown Copyright ©
LORD JUSTICE CHADWICK :
The Housing Act 1985
"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."
"(3) On such ...[a] stay, suspension or postponement the court -(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payment in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and(b) may impose such other conditions as it thinks fit.
(4) if the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession".
The termination and revival of secure tenancies under the 1985 Act
"judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays...the arrears...in addition to the current rent."
Lord Justice Russell (with whom the other member of the Court, Sir Denys Buckley, agreed) said this, at pages 1430H-1431A:
"In my judgment, once the defendant in proceedings of this kind where there is a suspended order for possession, ceases to comply with the conditions of the order, namely, 'the punctual payment of the current rent and arrears,' and there is a breach of the terms of the order, the tenancy, whatever it may be, from that moment comes to an end."
That observation was accepted as correct by the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448, 1453F, 1458D. It has been endorsed in two recent decisions in this Court - Lambeth London Borough Council v Rogers (1999) 32 HLR 361, 367, 370 and Pemberton v Southwark London Borough Council [2000] 1 WLR 1672, 1676B-E.
" 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."
It is important to note that during what Lord Browne-Wilkinson described as the "period of limbo" - beginning on the date when the tenancy comes to an end by virtue of section 82(2) of the 1985 Act and ending on the date on which the order is executed - neither party is bound by the terms of the old tenancy. During the "period of limbo" neither party can sue the other on the covenants in the old tenancy. The point is made by Lord Justice Mummery in Lambeth London Borough Council v Rogers (1999) 32 HLR 361, at page 367.
"I return to the statutory provisions to make the following observations:1. The existing tenancy determines on the date on which the tenant is to give up possession (section 82(2)).2. The Court may postpone the date for possession, i.e. the date on which the tenancy is to come to an end; or stay or suspend the execution of the order at any time before the execution of the order (section 85(2))
3. At first sight one might suppose that the court could only postpone the date of possession, and hence the date on which the tenancy is to determine, during the currency of the tenancy, i. e. by an order made before the relevant date has arrived. Thereafter, the tenancy being at an end, it would confine itself to staying or suspending enforcement of the order.
4. That is not, however, the way in which the statutory provisions operate. Section 85(2) is quite explicit. The court may exercise either power at any time before the execution of the order. Since the order cannot be executed until after the date on which the tenant is to give up possession, i.e. after the date on which the tenancy has determined, it follows that the section expressly contemplates the possibility that the court may postpone the possession date, and hence the date on which the tenancy is to come to an end, even after the tenancy has already determined.
5. Accordingly, the statutory provisions contemplate the possibility that the court may revive or reinstate the existing secure tenancy which must thereafter be treated as having continued without interruption. [emphasis added]
6. This construction is confirmed by the terms of section 85(4). The order which that subsection authorises the court to rescind or discharge must be the order which is subsisting at the date when it is rescinded or discharged and .... the court's power to rescind or discharge it is not excluded by the fact that during some previous period earlier forms of the suspended possession order and earlier conditions imposed had not been complied with. Once the order for possession which brings the tenancy to an end is rescinded or discharged; however, the tenant 's right to remain in occupation must be referable to the original tenancy which, ex hypothesi, has never been determined." [emphasis added]
"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 the 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."
"The secure tenancy of Miss Rogers came to an end on the date when she failed to comply with the terms of the suspended order of October 13, 1992. This occurred at the latest by the end of December 1992, possibly earlier when she failed to make the first stipulated payment. If she had found difficulty in complying with the terms of suspension she could have applied to the court to vary them. She did not do so.After the end of 1992 Miss Rogers was in occupation of the premises as a tolerated trespasser. The secure tenancy had come to an end. So had the covenants, including the Council's repairing covenant. That was not, however, a final or irreversible situation. The possession order had not been executed. That makes all the difference to the statutory protection of Miss Rogers under section 85".
Lord Justice Mummery then set out the passage from the speech of Lord Browne-Wilkinson in Burrows v Brent, at pages 1454H-1455A, to which I have already referred, and continued:
"During the 'limbo period' Miss Rogers could not enforce the repairing covenant against the Council. She was not a tenant. There was no tenancy in existence. The Council could have applied to the court in late 1996 to strike out her claim against it. But it did not do so. Nor did it enforce the possession order. Instead it made an agreement with her on April 20, 1998 tolerating her continued occupation of the premises."
The reference, there, to the possibility of an application to strike out her claim in late 1996 was made in the context that Miss Rogers had commenced proceedings for breach of repairing covenants in September 1996, during the "period of limbo". But, as Lord Justice Mummery observed, there had been no application to strike out those proceedings. What had happened was that, before her proceedings for breach of repairing covenants had come on for trial, Miss Rogers had issued an application, in September 1997, seeking orders under section 85 of the 1985 Act that the 1992 possession order be rescinded or discharged or that the date for possession under that order be postponed, on the grounds that she had adhered to an agreement for instalment payments made with the Council in May 1994. Her claim for damages for breach of repairing covenants and her application under section 85 came on for hearing together. On 23 November 1998 the county court judge discharged the 1992 possession order, gave judgment in favour of Miss Rogers on her damages claim and ordered that the judgment be satisfied, in part, by the cancellation of the balance outstanding on the rent account.
"(3) What was the effect of the order on the liability of the Council to Miss Rogers for disrepair of the premises during the 'limbo period'? In my judgment, the Council's repairing obligations were retrospectively revived by the order and the Council was rightly held liable in damages for breach of covenant.According to the terms of the April 1998 agreement, the Council would not enforce the 1992 possession order to evict Miss Rogers for so long as she kept to her agreement for the payment of the current rent and payment off of arrears; and the date for possession was to be postponed until she failed to comply with its terms. Miss Rogers kept to that agreement. The possession order was not executed. She was still a tolerated trespasser in the premises when she came before the court with her application for orders under section 85 and her claim for damages for disrepairs occurring in the 'limbo period'. The court had power to make an order on her application under section 85(2)(b) to postpone the date of possession for such period and on such conditions as it thought fit. Indeed, as Lord Browne-Wilkinson said in Burrows at 1455E, there was little doubt as to how the court would exercise that discretionary power in these circumstances -
'If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order.'
It is also clear from Burrows that the effect of a court order postponing the date for possession under section 85(2)(b) is that, unless the court otherwise directs, the secure tenancy is revived and that the revival applies retrospectively to the covenants, as well as to the tenancy itself. See 1455D-F."
The facts in the present case
"IT IS ORDERED that the judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays to the plaintiff or his agent the [arrears of rent, mesne profits and] costs by instalments of £1.70 per week in addition to the current rent.AND that the judgment for £574.60 shall not be enforced for so long as the defendant pays the instalments of £1.70 per week.
AND ALSO that the judgment[s] shall cease to be enforceable when the [arrears of rent, mesne profits and] costs referred to above are satisfied."
The form of the order (Form N.28) - and, in particular, the form of the provisions to which I have referred - was that then prescribed for use where the court had decided to make a suspended possession order; see the County Court (Forms) Rules 1982 (SI 1982/586).
These proceedings
"By an order of the Court made on 27 January 1989, in an action brought by the Defendant herein against the Claimant herein; the Defendant herein was granted possession of the dwellinghouse, the same not to be enforced for 28 days in any event and for so long thereafter as the claimant herein punctually paid to the defendants herein arrears of rent, mesne profits and costs by instalments of £1.70 per week in addition to the current rent. On or before 3 February 1989, the Claimant herein had failed to make the said payments as set out herein above and the said tenancy was thereby determined forthwith."
If Mrs Marshall ceased to be tenant in 1989, then (it was said) any claim against the District Council, as landlord, for breach of its express or implied repairing covenants must have accrued long before 9 April 1993 (the date six years before the issue of these proceedings); with the consequence that these proceedings were commenced after the expiry of the relevant period of limitation.
" ..my decision...was clearly based on fact that Claimant's counsel conceded technically the Defendant's application to strike out was correct and further that the Claimant would need to make an application to reinstate the tenancy. There was no such application before me."
Subsequent events
"Furthermore, I am told that when this matter was before the district judge...that the entitlement to a striking out, technically speaking, was conceded. But it was there argued that the interests of justice should require that, in effect, an amendment be permitted to turn the action into a claim to reinstate the tenancy. That is supported by the draft order that was submitted with the notice of appeal as the proposed outcome, which indeed did not envisage a substantive hearing of the appeal today, on the face of it."
There is, however, no indication that the judge thought that an application to reinstate the secure tenancy was being pursued in the proceedings that were before him; nor is it easy to see how such a claim could properly have been pursued in proceedings to which Mr John Marshall was not a party.
The issues on this appeal
Waiver
"If the Local Authority agrees in advance to a variation in the conditions on which the order for possession is suspended, there will be no breach of the conditions and no termination of the tenancy. This is because it is implicit in the order that the tenant is not obliged to make payments if the Local Authority agrees that he need not do so, or if the Local Authority waives payment. If, after a breach occurs and the tenancy is determined, and the Local Authority subsequently reaches agreement with the tenant the effect of which is to waive the breaches, then in my opinion in accordance with ordinary principle such breaches must be treated as if they had not occurred. It would follow from this that the tenancy must thereafter be treated as not having been determined. This appears to me to be the effect of an order which leaves the determination of the tenancy to the occurrence of a breach of the conditions of the order, and which leaves the occurrence of a breach to be dependent upon whether the landlord treats it as such or agrees to waive the breach."
"The Court of Appeal [in Regan] held (in my view rightly) that the parties could not vary the terms of the court order. But they held that by agreeing the new conditions, the landlord waived the right to complain that failure to comply with the conditions specified in the order constituted a breach of those latter conditions. Consequently, there being no breach of the conditions imposed by the order upon which the landlord could rely, the order remained in force, the date for giving possession had not passed and therefore the old tenancy had not been terminated."
But it cannot be said that he endorsed that view.
"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?"
He answered that question in the next paragraph of his speech, at page 1455B-C:
"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." [emphasis added]
The passages which I have emphasised are inconsistent with the view, expressed by Lord Justice Millett in the Regan case, that the agreement not to execute the order for possession, made during the period of limbo, has (of itself and without an order of the court) the effect of reviving the original secure tenancy. The effect of the agreement not to enforce the possession order - or to waive reliance on the breach of condition which has given rise to the right to enforce the order - is to prevent the landlord from taking the step which will finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. The agreement does not, itself, revive the original tenancy.
"Pending the possible revival of the old secure tenancy and while the agreed conditions are being complied with, the presence of the former tenant in the premises is tolerated by the landlord Council. "
At page 369 Lord Justice Mummery set out the argument that was being advanced by Mr Lewison QC on behalf of the tenant in that case in reliance on the observations of Lord Justice Millett in the Regan case (to which I have referred); that is to say, that the effect of a post-breach agreement could be to revive the original secure tenancy. But he rejected that argument. He said this:
"The important point is that the court ultimately retains an overriding discretion under section 85 (of the 1985 Act] to make what order it considers fit. Mr Lewison's contention that the agreement of the parties, if analysed in the sense explained by Millett LJ, is necessarily determinative of the result should be rejected. Such an agreement would no doubt provide the court with cogent material for the discretion under section 85, but it would not be effective to oust the statutory regime of an overriding discretion relating to the protection of secure tenancies."
Automatic revival under the terms of the original order
The discretion to strike out the first disrepair proceedings
Conclusion
SIR CHRISTOPHER STAUGHTON:
LORD JUSTICE SCHIEMANN: