Nearly Legal

[Edit. As it turned out, this was part 1 of a continuing series. See the bottom of the post]

Little of this is likely to come as a surprise to anyone involved in housing law, but the after effects of Harlow DC v Hall [2006] EWCA Civ 156 rumble on. It is worth examining not only for the mixture of the good, the bad and the downright counter-intuitive involved, but also because there are so many people affected. Estimates vary, but it is likely to be tens of thousands.

To recap, Harlow v Hall decided that the usual suspended possession order, as given in form N28 since 2001, did not, as everyone involved had assumed, delay the date of possession by the landlord as long as the tenant kept to the conditions. Rather possession was given on the date stated in the order, but could not be enforced as long as the tenant met the conditions. At a stroke many thousands of people became tolerated trespassers, with all the repercussions on the landlord’s repairing covenants, disrepair claims etc., not to mention tenant’s covenants, statutory rent rises, succession rights and more - see para 34 of Bristol v Hassan, below.

My usual courts promptly [within four weeks] had meetings of their Judges to come up with an interim form of order while awaiting the DCA’s alternative. My usual courts see a hell of a lot of possession claims and have a good idea of the problems. Public suggestions came from other interested parties, including the LAPG.

Fortunately, the Court of Appeal worked things out pretty quickly and, in Bristol City Council v. Hassan & Glastonbury gave its view on the preferred form of ‘Postponed Possession Order’. It is worth noting that the LAPG version put forward by Jan Luba QC won out. In this version, the date of possession is postponed indefinitely and it requires application by the landlord to determine the date of possession and the tenant be given 14 days notice of the landlord’s intention to do so, with the tenant’s response to be sent to the Court with the application, although no further hearing is required.

That ‘required’ is interesting. The landlord can make a ‘without notice’ application, to be sure. We’ll see how this plays out, because a response or challenge to the application is certainly not ruled out. See para 39 for the full recommended form of order.

This is broadly good, I think. It certainly makes PPOs clearer and more in line with what was generally understood to be the purpose of the SPO.

However, it leaves the status of existing tolerated trespassers, whose numbers were dramatically swelled by Harlow v Hall, in a mess. Which is where the counter-intuitive moment comes in. Surely, one would think, once the rent arrears have been paid off (the usual reason for an SPO, although anti-social behaviour is on the increase - another post, I think), it ought to be straightforward to rescue the tenancy. Nope. Marshall v Bradford MDC means that the easiest way, which is via an s.85 application to further postpone the date of possession, isn’t available as there is no longer any basis for the date of possession to be postponed.

So, if you are a tolerated trespasser, don’t pay off the rent arrears until you have made a successful application under s.85 Housing Act 1985 to postpone the date of possession, hopefully indefinitely, so that your tenancy will exist and survive paying off the arrears.

Now, on a purely practical basis, who the hell is going to help tens of thousands of tolerated trespassers make s.85 applications? Is public funding even available to make such an application as a freestanding action? (I honestly don’t know.) Have the Courts got time? The prospective clients certainly aren’t going to do it themselves. Local authorities seem to be taking varying positions on tolerated trespassers, particularly in regard to repairs. Some are using it to cut down to the ‘habitable’ minimum, others carry on as usual. But this is neither an acceptable nor fair situation.

One response might be to try to include postponing the date of possession in other draft orders on the back of other applications, say where a stay of warrant of possession is being agreed. Worth a try, given the argument that the effect of N28 was clearly not intended, by the parties or the District/Circuit judges.

But Harlow v Hall isn’t over yet, by any means. I fear that Tessa Shepperson’s suggestion of the end of the tolerated trespasser is rather rosy. Granted the new order should reduce those accidentally falling into tolerated trespasser status through the inevitable housing benefit cock-ups. But, not only are there many thousands left in existence, but once the date of possession has been determined under Bristol v Hassan, the occupant’s status is…?