Local government – Date of termination – Death – Tolerated trespass

Austin (FC) (appellant) v Southwark London Borough Council (respondent): SC (Lords Hope, Walker, Brown, Kerr, Lady Hale): 23 June 2010

The appellant (T) appealed against a decision ([2009] EWCA Civ 66, [2010] HLR 1) upholding a ruling rejecting his application to be appointed to represent the estate of his deceased brother (D) in possession proceedings which had been brought by the respondent local authority in 1986.

D had occupied a house under a secure tenancy. An order for possession was made against him in February 1987 after he fell into arrears with his rent. The order provided that it was not to be enforced so long as he paid the arrears by 4 March 1987. D failed to comply with the terms of the order, so that on 4 March it became enforceable. However, he remained in the premises, paying rent plus amounts towards the arrears, until his death in 2005. T asserted that he had moved in to the property in 2003 to care for D. In 2006, the local authority served a notice to quit on him and issued possession proceedings against him. The issues were: (i) whether, under section 82(2) of the Housing Act 1985, a secure tenancy ended on a breach of the conditions of a suspended possession order, being the position as the law stood, or whether it endured until the order for possession was executed; (ii) whether the former tenant’s right under section 85(2)(b) of the 1985 act to apply to postpone the date of possession, and thus revive the secure tenancy, survived his death and passed to his estate.

Held: (1) In Knowsley Housing Trust v White [2008] UKHL 70, [2009] 1 AC 636, Lord Neuberger had said that there was a powerful case for saying that ‘the date on which the tenant is to give up possession in pursuance of the order’ in section 82(2) could and should mean the date specified in a warrant of possession which was duly executed. However, he also said that it would be wrong for the House of Lords to hold that the decision of the Court of Appeal in Thompson v Elmbridge BC [1987] 1 WLR 1425 CA (Civ Div), to the effect that a secure tenancy ended on a breach of the conditions of a suspended possession order, was wrongly decided; equally, he said that it would be wrong for the house to go back on its previous approval of Thompson in Burrows v Brent LBC [1996] 1 WLR 1448 HL. There was much to be said for Lord Neuberger’s interpretation of section 82(2). Nevertheless, it would not be appropriate to depart from the decision which the house took in Knowsley that the view expressed about Thompson in Burrows should not be reconsidered and departed from. The law was regarded as having been settled by Thompson and the effects of reversing that decision now were incalculable. It had been assumed to be right and had been acted on in many tens of thousands of cases. Of greatest concern was the effect that a retrospective reversal would have on social landlords who for so long had assumed that those who had failed to comply with the conditions in a suspended possession order were no longer tenants with a right to enforce the implementation of repairing covenants. It was a reasonable assumption that the consequences of reviving these covenants and the opportunity that this would give for claiming damages for breach of these obligations was one of the factors that led to the decision that the law should be amended by the Housing and Regeneration Act 2008 only prospectively. Further, declaring that Thompsonwas no longer good law would undermine the system created by the 2008 act, Knowsley, Thompson, Burrows and Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 HL considered.

(2) The fact that the secure tenant had died did not deprive the court of its jurisdiction to exercise the power conferred on it by section 85(2)(b) to postpone the date of possession under a possession order. There would seem to be no reason why the deceased’s personal representative should not be able to seek the exercise of the power to postpone, for example to enable the deceased’s affairs to be put in order and any licensee or sub-tenant to be rehoused. Another example would be where the deceased tenant, having made good a previous default, had applied for the date for possession to be postponed but died the day before his application was to be heard. The wording of the subsection did not compel a reading that would deny the jurisdiction of the court to exercise its powers in such circumstances. It followed that it was open to T, who sought to represent the estate of a person who had been served with a claim for possession, to apply for the date of possession to be postponed, Brent LBC v Knightley [1997] 2 FLR 1 CA (Civ Div) overruled.

Appeal allowed.

Jan Luba QC, Desmond Rutledge (instructed by Anthony Gold) for the appellant; Richard Drabble QC, Shaw Kelly (instructed by in-house solicitor) for the respondent.