Following on from our post yesterday (and from a personal conversation with Robert Latham of Doughty Street Chambers) we can shed a bit more light on the forthcoming commencement of Sch 11, Housing and Regeneration Act 2008.
Firstly, the successor landlord order has not changed from the draft, which can be found here. The final order will be online shortly – we hope!
Secondly, the Government will be publishing some guidance and other information here, at some stage on Wednesday.
Thirdly, the reforms will come into force in both England and Wales.
Finally- and as trailed yesterday – the Government will not be bringing paragraphs 3(3), 8(3) and 14(3) into effect. This means that s.85(4) Housing Act 1985 and s.9(4) Housing Act 1988 will be unamended. But what does that actually mean?
s.85(4) as currently enacted provides that “if the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.”
As amended, it would provide that “the court may discharge or rescind the order for possession if it thinks it appropriate to do so having had regard to (a) any conditions imposed under subsection (3) and (b) the conduct of the tenant in connection with those conditions.”
Now – there is quite an important difference between s.85(4) as unamended and as amended. The amended version is clearly a broader power to discharge or rescind and, most importantly, prevents arguments about the extent of the compliance with the order from being determinative of any application to discharge or rescind.
Let me take an example (borrowed from Robert Latham). Imagine, if you will, that a possession order is made against a tenant due to the ASB of her partner. The order is not an outright order for possession, but is conditional upon there being no further incidents of ASB. The partner then commits a further act of nuisance and, in response, the tenant seeks an injunction to keep the partner away from the property.
In that situation, it is clear beyond any doubt that, under the amended s.85(4), she could apply to discharge the order and the conduct of the tenant in relation to that order (i.e. that it had been an unwitting breach which she had taken steps to prevent) would merely be one factor to be taken into account. What matters under the amended s.85(4) is the conduct of the tenant, not whether there is a breach per se.
However, it is unclear as to the extent to which, s.85(4) as unamended would apply. On one view (Marshall v Bradford MBC (2002) HLR 22 and Swindon BC v Aston  HLR 42), the court would have no power to discharge or rescind the order as there had not been compliance.
That view would, I think, be wrong, since we all now know that s.85(4) as unamended did not require strict compliance (see Knowsley HT v White and other appeals  UHKL 70) nor does it even have to be “substantial compliance” (per Lord Mance, in the minority in Knowsley) but the extent to which compliance is necessary is a matter for the judge in each case (per Lord Neuberger, Knowsley, ).
So – the extent to which the conditions have been complied with is a matter of “at large” discretion for the District Judge. Surely this will just provoke more litigation as to how that discretion should be exercised? Some DJs will require greater degrees of compliance than others – isn’t this just a recipe for confusion?
The amendments would have the advantage of clarity and of structuring the discretion of the DJ. Surely this has to be right?
It’s too late now for the Government to amend the commencement orders, but I do confess to some unease at this late decision to only bring parts of Sch. 11 into force. I know that we have quite a few readers at CLG – if you feel that I’m doing your position a disservice, please do get in touch. I don’t pretend that this is an easy matter, but I do fear that the Government has made matters more complicated than they need to be.