West Law Report

Landlord must prove breach of condition

Posted in Times Law Report by mrkooenglish on December 1, 2008

From The Times
November 25, 2008
Landlord must prove breach of condition

Court of Appeal

Published November 25, 2008

Wandsworth London Borough Council v Whibley

Before Lord Justice Tuckey, Lord Justice Sedley and Lord Justice Lawrence Collins

Judgment November 14, 2008

While it was possible to have a summary disposal of applications to fix a date in a landlord’s possession action, an unsupported assertion that the tenant had to answer did not suffice to procure a hearing, and nor would a bare denial amount to an answer.

The Court of Appeal so held in a reserved judgment in dismissing an appeal brought by the landlord, Wandsworth London Borough Council, against the refusal by Judge Hallon, on January 23, 2008, at Wandsworth County Court, to give summary judgment for possession to the landlord against the tenant, David Whibley.

Mr Jon Holbrook for Wandsworth; Mr Robert Latham and Mr Jim Shepherd for Mr Whibley.

LORD JUSTICE SEDLEY said that section 85(2)of the Housing Act 1985 permitted the court making the possession order to stay or suspend its execution or to postpone the date of possession, in either case for such period or periods as the court thought fit, upon mandatory conditions as to rent arrears and discretionary conditions as to any other matters.

If the conditions were complied with, sub-section (4) allowed the order to be discharged or rescinded; but, on present authority, a single noncompliance put that step beyond the court’s reach. That was why a postponed possession order had come to be used as a less problematical alternative to a suspended order.

The latter, by terminating the tenancy but withholding possession in many cases indefinitely, left both landlord and tenant in a limbo in which the tenant had been aptly characterised as a tolerated trespasser, with no affirmative rights but a status of irremovability.

That unsatisfactory situation was avoided by a postponed order, which preserved the tenancy pending discharge of the order, further postponement or the fixing of a date for possession.

The defendant had been a tenant since 1996 under a secure tenancy. In 2005 he was convicted of cultivating cannabis in his flat. The grounds given in the possession notice were arrears of £615.12 and nuisance by growing cannabis.

The claim for possession was tried before a district judge in November 2006. He found the grounds made out and held it reasonable to make a postponed possession order, with conditions of postponement relating both to payment of rent and arrers and to observing the terms of the tenancy.

The order as drawn, however, referred only to the rent; it was not amended until the crucial hearing before another district judge on September 19, 2007.

The day before the September 19 hearing, the defendant’s solicitors served a cross-application returnable on the same hearing, seeking an adjournment of the landlord’s application with directions for a full hearing and for further postponement of possession or suspension of the warrant.

When the cross-applications came before the second district judge, the landlord relied on the nuisance claim provided it could be determined without live evidence, which the district judge declined to do.

Instead, he set directions for a hearing on the first open day and gave the landlord permission to appeal his directions. The appeal was fixed for January 10, 2008, but for want of time the case was adjourned to the date set for the hearing of the substantive applications.

On that date, however, rather than go ahead with the application to fix a date for possession, the landlord used the allocated day before Judge Hallon to pursue its appeal against the district judge’s directions.

Its object, then and now, was to secure a ruling that, save in quite exceptional cases of which this was not one, county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order.

The landlord in a case like the present had proved arrears and nuisance and had obtained a possession order postponed on specified conditions; what it had not yet proved was a breach of one or more of those conditions, and without such proof it could not ask the court to fix a date for possession.

That was the problem which faced the district judge here, and he was manifestly in no position to resolve it summarily in the claimant’s favour. An adjournment was unavoidable.

In many cases, the discharge of the obligation to consider whether or not it was right to make an order for possession would lead to summary judgment where no triable issue had been advanced. But that was not the case here and the appeal would be dismissed.

Lord Justice Lawrence Collins and Lord Justice Tuckey agreed.

Solicitors: Ashfords; Flack & Co, Wandsworth.

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