Suspended possession order

Shepherds Bush Housing Association v Porter CA TLR 2 April

The Housing Act 1985 introduced a scheme for the regulation of secure tenancies. The scheme made provision for the suspension of a possession order on the conditions under s85(2) and (3). A court exercising the power to suspend could be expected to balance the respective interests of landlord and tenant at the time the order was made. The terms of the suspension would be determined by the court’s view of the needs and merits of the particular situation. While the order remained in force, the occupier might apply to the court for a further period of suspension or for a variation of the conditions. It would be alien to the scheme to acknowledge a power under rules to extend time when the object of the extension was to make possible the rewriting of a valid order of the court made under s85. Rule 3.1(2) of the Civil Procedure Rules does not permit the court to take that course. In 1997, the Court had made a suspended possession order in favour of the claimants on condition of regular payments by the defendant of rent arrears by way of specified instalments. The defendant failed to pay the instalments regularly within the due time but made a lump sum payment and continued to occupy the property as a tolerated trespasser. The regular receipt of the sums due from the tenant, or occupier, and arrears, was likely to be an important consideration for the landlord. The change in circumstances relied on was a payment by way of a lump sum, or lump sums, of arrears of rent which should have been paid regularly. This was not a change of circumstances, but an attempt to re-write a valid order. The Court had to decide whether to follow Marshall v Bradford Metropolitan District Council [2002] HLR 22 and the cases which had followed it, or Payne v Cooper [1958] 1 QB 174. The Court should apply the more recent decision rather than the 1958 decision. Section 3 of the Human Rights Act 1998 did not require the court to construe s85 of the act in the Payne sense, to discharge the possession order on compliance of the conditions, or rely on r3.1(2) to revise the possession order made in 1997.