Julie Exton and Neil Hickman examine the routes open to judges following recent rulings on tenancy


Reform of section 82(2) of the Housing Act 1985 has been needed for a long time.



The issue was thrust into prominence by the Court of Appeal's decision in Harlow DC v Hall (2006) EWCA Civ 156, (2006) All ER (D) 393 (Feb) (see (2006) Gazette, 16 March, 29), which held that the wording of county court form N28 meant that all secure tenants with suspended possession orders became tolerated trespassers, even if they complied with the terms of suspension to the letter. This prompted the setting up of a working party that proposed an alternative form of order, which the appeal court considered in Bristol CC v Hassan, Bristol CC v Glastonbury (2006) EWCA Civ 656, (2006) All ER (D) 321 (May).



It should be borne in mind that the court in Glastonbury said in terms that there is no 'normal' form of order. Options for the judge following Hassan include:



Adjournment on terms as to payment of current rent and instalments of the arrears. It is too often overlooked that, in all rent arrears cases involving secure tenants, the court must consider whether it is reasonable to make a possession order. A possession order should not be automatic, even if the arrears are substantial (see Woodspring DC v Taylor (1982) 4 HLR 95 and Brent LBCv Marks (1999) 31 HLR 343). If a local authority or registered social landlord does not observe the new rent arrears protocol, possession orders should be refused.



An outright possession order. This is particularly likely to be appropriate in cases of serious nuisance.



An outright possession order, with its enforcement suspended on terms. This was the effect of form N28 as interpreted in Harlow. The tenancy is ended, but the former secure tenant is allowed to remain as a tolerated trespasser. The appeal court in Hassan indicated that this might be an appropriate disposal for a serious and persistent case of rent arrears. It should be distinguished from an order where the giving of possession is suspended, for example: 'The landlord shall recover possession of the property. This order shall not take effect for 28 days in any event, and for so long thereafter as the defendant observes the terms of suspension.'



The terms may be, for example, refraining from conduct that is a nuisance to neighbours. While it is perfectly permissible to make a 'suspended' order in a secure tenancy rent arrears case (Glastonbury), its inflexibility and the risk of a breach occurring without any fault on the tenant's part mean that it is unlikely to be appropriate. The appeal court in Knowsley Housing Trust v McMullen (2006) EWCA Civ 539, (2006) The Times, 22 May, has held that it is not normally appropriate to require an application to the court before the landlord may enforce a 'suspended' order, though on the facts of that case - the tenant was under a disability - this requirement was imposed.



A 'postponed order', as in Hassan. A new form N28A has been introduced, the operative wording being: 'The defendant is to give up possession of address to the claimant. The date on which the defendant is to give up possession of the property to the claimant is postponed to a date to be fixed by the court on an application by the claimant... the claimant shall not be entitled to make an application for a date to be fixed for the giving up of possession and the termination of the defendant's tenancy so long as the defendant observes the terms of postponement.'



Because the postponed order involves the landlord in additional work, and its objective is to avoid the unintentional creation of tolerated trespassers, it is only in rent arrears cases involving secure tenants that N28A is appropriate. It is supported by a special, speedy procedure by which the court can be asked to fix a date for possession to be given up.



That procedure appears in a new part IV to the part 55 practice direction. Briefly, if the tenant breaches the terms of suspension, the landlord must write to the tenant giving details of the breach (surely good practice in any event), and then apply to the court attaching copies of the letter to the tenant, any reply, and a current rent statement. Unfortunately, a fee will be payable for an application without notice. The district judge will consider the application on paper and will 'normally' fix the next working day as the date for possession, clearing the way for the landlord to issue a warrant.



Probably the only circumstances in which it will be appropriate for the district judge to refuse to fix a date, and to direct a hearing, will be if the tenant has replied, drawing attention to a problem with housing benefit or to payments that have not been taken into account - and any sensible landlord is surely going to investigate those matters rather than rushing to apply to the court.



The use of the postponed possession order should eliminate for the future the problem of the secure tenant who accidentally becomes a tolerated trespasser. However, the position of the tenants who have been turned into tolerated trespassers over the past few years by the use of form N28, appears to be beyond the reach of judicial intervention, save on a case-by-case basis. There is still a problem here that Parliament needs to find time to deal with.



The recent developments concern secure tenants. They do not affect assured tenants as well. It was deliberate that part IV of the part 55 PD was confined to secure tenancies. The Housing Act 1988, which deals with assured tenancies, does not contain the same wording as section 82(2) of the 1985 Act. The only situation in which an assured tenant appears to be liable to become a tolerated trespasser is if he is permitted to remain in occupation after the making of a mandatory order, as in Leadenhall Residential2 Ltd v Stirling (2001) EWCA Civ 1011, (2001) 3 All ER 645.



At least until the appeal court decides otherwise, the problem of the accidental tolerated trespasser, which Hassan attempts to address, is confined to secure tenancies.



District Judge Julie Exton sits at Bristol County Court and heard Bristol City Council v Hassan. District Judge Neil Hickman sits at Milton Keynes County Court and was a member of the secure tenancies working party