Housing law news and comment
Word reaches us that LB Southwark v Austin (our report on the Court of Appeal here) has been given permission by the House of Lords (or Supreme Court as it will be).
It seems that the time of the tolerated trespasser troubling the Lords is not yet over, as the situation in Austin was not caught by the Housing and Regeneration Act. So one to watch out for.
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It is official, orders signed and everything. As of today, 20 May 2009, Schedule 11 of the Housing & Regeneration Act is in force, save for paragraphs 3(3), 8(3) and 14(3), which we are arguing about below. Housing and Regeneration Act 2008 (Commencement No. 5) Order 2009. SI 2009/1261
Also in force today – The Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009. SI 2009/1262
So, replacement tenancies all round, then.
[edit - now confirmed on the DCLG site.]
[Edit: The SIs are not available yet on Gov. sites. Robert Latham has kindly passed on printer’s copies of the SIs but these are, of course, not official. Download the SIs:
SI 2009/1261 HRA commencement
SI 2009/1262 Successor landlords order
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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 [2003] 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 [2008] 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, [107]).
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.
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With grateful thanks to James Stark of Garden Court North and North West Housing Law Practitioners Group, we can pass on some news on the introduction of Schedule 11 Housing & Regeneration Act 2008 and the end of the tolerated trespasser.
The SI should be before the Lords today and the amended Sch 11 provisions are intended to be in force on Wednesday, 20 May 2009. This is, of course, no guarantee that this will happen, but it is what the DCLG intend.
North West HLPG had made representations on some issues with Sch 11 and the amendments.
First, they argued that the amendments to Section 9(4) and 85(4) should not be brought into force as they would have the effect of abolishing propleptic discharge. Apparently, the DCLG has accepted this and the amendments will not be brought into force.
The effect of s.171A of the successor landlord order is that ex-tolerated trespassers with a successor landlord will not get their ‘preserved’ RTB unless the original possession order is discharged. The DCLG are apparently looking for a solution.
Also raised is the interesting, if unlikely to be common, issue of what happens to a proleptic possession order (as in Honeyghan-Green) following a replacement tenancy. The answer seems to be that the proleptic provisions continue to have effect, so when the arrears etc are paid off, the original tenancy revives, regardless of whether a replacement tenancy is in place.
Is this it? Is the era of the tolerated trespasser (almost) at an end? Have they finally solved the Schleswig-Holstein question?*
Update 19 May 2009. It is confirmed that the intent is for Schedule 11 and the Successor Landlord Order to be in force from tomorrow, 20 May. There should be a brief announcement on the DCLG ‘what’s new’ page of their site.
[* See the minutes of the Delegated Legislation Committee, Monday 27 April 2009]
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Via a somewhat convoluted route, we have received news of a cautionary tale from Croydon. Consider it an illustration of the need to use conditional language when writing about something which is supposed to happen but which is outside of your control. It is also a story which may (see, that’s how you do it) have ramifications for Croydon Council’s tolerated trespassers.
Croydon v Kamal, 6CR24634, Croydon County Court 6 May 2009 was an application for stay of eviction on a breached suspended possession order made in 2006. Mr Kamal, via South West London Law Centres, made a rather unusual submission.
On 23 March Croydon had written to him. The letter was headed ‘Replacement Tenancy’ and said, in full:
I am writing to inform you that on 6 April 2009, your status will automatically change from a tolerated trespasser to that of a secure tenant.
This means that your status as a secure tenancy [sic] will be reinstated and you will be granted a replacement tenancy.
As a secure tenant, the local authority must obtain a court order if we want to end your tenancy. You have a number of legal rights, the main ones of which are summarised below:-
The right of succession
The right to exchange with the Council’s consent
The right to buy
The right to repairPlease contact me if you wish to discuss this letter.
Oh dear. I’ll say a little more about this letter below.
Mr Kamal argued that this letter constituted the grant of a new tenancy, from 6 April; that the Council were unable to rely on possession orders obtained under the old tenancy and the warrant must be dismissed.
Croydon argued that the letter was sent in anticipation of the relevant parts of the Housing and Regeneration Act 2008 coming into force and it was simply advising on the effect of that Act.
Mr Kamal replied that the letter made no reference to the Act, the relevant parts of the Act were not in force and in any case, the letter was inaccurate if it were simply advice, as the Act did not require the landlord to obtain a new possession order if there was an existing one in effect.
The District Judge held that a new tenancy had come into existence on 6 April 2009 and dismissed the warrant.
It has to be said that on the express terms of the letter, that conclusion is hardly surprising. To those of us awaiting the introduction of Schedule 11 of the H&RA 2008, the terms of Croydon’s letter, although perhaps unfortunately phrased and inaccurate, would be plausibly intended to be advice to the ‘new tenants’. However, to the recipients, assuming they don’t read this blog, it could only be read as a statement that Croydon would be giving them a new secure tenancy from 6 April: no ifs, buts or conditions.
I feel a little sorry for Croydon. The idea of sending a letter about the supposedly forthcoming change of status was a good one. Putting it in clear language was a good thing. Putting it in such definite terms, when, let’s be honest, none of us were certain that Schedule 11 would be in force on 6 April – and without reference to the Act – was, at the very best, a hostage to fortune. And the mistake over the effect of past possession orders just piled error on misfortune.
An unanswered question is did Croydon send this letter to all its tolerated trespassers? From the form of the letter, it would appear that they did.
Would this mean that all Croydon tolerated trespassers have a new tenancy from 6 April? Well, it was a DJ decision so not binding in any way, but clearly arguably yes. If so Croydon has the distinction of being the first authority in England and Wales to abolish tolerated trespassers. Would it mean that none of Croydon’s previously existing possession orders would be of any continued effect? Arguably, yes, if the (ex) tenant got this letter.
I suspect someone in Croydon Council might be in for a bit of a rough performance assessment meeting.
And on the other hand what would this mean for people who would arguably have been better off making a s.85 application to vary or discharge the original possession order to regain their original tenancy? For example those who had applied for the right to buy prior to the old PO (Honeygan-Green), or those with a potential disrepair claim for the ‘missing years’ of the tenancy? Does the possibly unwitting grant of new tenancy, with the previous possession orders now of no effect, scupper their position?
Such a mess is the reward of good intentions…
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We’ve been contacted by the solicitor for Mr Austin of Southwark v Austin. There is to be an application for permission to go to the House of Lords (or Supreme Court? depending on timing, I suppose). As part of this, they’re looking for indicators of the scale of the issue involved in the case.
So the request is:
Please would anyone who has, or has had, a possession case acting for an occupier who would have been a successor tenant if the deceased (ex) tenant had not been a tolerated trespasser at death, contact the solicitor for Mr Austin, Charlotte Collins at charlotte.collins@anthonygold.co.uk (and I gather, the sooner the better.)
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News just in – the government has announced that the date for the implementation of s.299 H&R Act 2008 – which brings in ‘replacement’ tenancies has been delayed from 6 April 2009, when we thought it was going to happen, to ‘early May’. This is apparently so that the Order on successor landlords can be scrutinised by Parliament and come into force at the same time. More detail on the successor landlords order and implementation dates to follow as and when.
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The mopping up of the tail end of tolerated trespasser cases continues.
Barry Austin v LB Southwark [2008] EWCA Civ 66 was the Court of Appeal hearing of the appeal from the High Court hearing we noted earlier.
The issue at stake was whether Mr Austin would have a right to apply under s.85 HA 1985 to vary the possession order made against his late brother Alan in 1987, so as to revive the tenancy, by way of application to the Court under CPR 19.8 to represent his late brother’s estate in the possession proceedings.
If the possession order were varied, Mr Austin would succeed to his late brother’s tenancy. At the time of his death, Alan Austin was a tolerated trespasser and had been since 1987.
Brent LBC v Knightley (1997) HLR 857, [1997] EWCA Civ 917 was Court of Appeal authority that the right to apply under s.85 to vary the possession order was not inheritable. The issue here was whether the late (ex) tenant’s estate retained the right to make a s.85 application.
Mr Austin, via Jan Luba QC, argued that:
A secure tenancy does not determine on the death of the tenant, because it can vest in a successor. Thus an order for revival after death would be effective.
The discretion under s.85(2) to vary the order can be exercised at any time before the execution of the order. There is no suggestion that this ends at the death of the tenant. A successor could exercise it, or, the estate where there was an extant possession order, but the date for possession had not yet passed.
There are practical reasons for allowing a post-mortem application for a tolerated trespasser – possibly for removing belongings or the landlord may wish to apply. A spouse. cohabitant or former such may wish to apply under s.85(5).
If Alan Austin had made an application but died before it was heard, the order could still be made.
Brent v Knightley could be distinguished. There was no application to represent the estate of the deceased Mrs Knightley, so the decision was not binding. Alternatively, Knightley was decided per incuriam because s.1 of the Law Reform (Miscellaneous Provisions) Act 1934 meant that it was possible for causes of action to survive death. The right to apply under s.85(2) should be treated as a transmissible personal right. The causes of action which survive include causes of action founded on statutory rights, which included s.85 applications.
Further, the right to make a s.85 application was a property for the purposes of Art 1 Protocol 1 ECHR and s.85(2) should be interpreted in accordance with Art 1 Prot 1.
Southwark, via Richard Drabble QC, argued that Brent v Knightley was binding. The right to apply under s.85(2) was a personal right for the ex-tenant which did not survive death and therefore Art 1 Prot 1 was not engaged.
Arden LJ’s lead judgment held:
1. Subject to s.3 HRA 1998, the court was bound by Brent v Knightley. Knightley decided that the right to apply under s.85 was a personal right that can only be exercised by the tenant. It is not an interest in land capable of being inherited – Aldous LJ and the only possible way Miss Knightley could succeed was via s.89 HA 1985 – Schiemann LJ. The relevant claim was an application under s.85, not the original possession proceedings as the defence was merged into the possession order.
(As an aside, given that any s.85 application has to be under the original possession proceedings to vary the original order, I’m puzzled by this last bit, but as nothing much apparently turns on it in this judgment…)
2. Knightley was not decided per incuriam as the relevant statutory provisions were before the court and it had not been shown that any relevant authority had been overlooked (as it would have to have been shown that the authority overlooked would have required the court to reach a different conclusion Duke v Reliance Systems Ltd [1998] QB 108).
3. The right to apply under s.85 is restricted to the tenant, successor or a person to whom s.85(5) applies (spouse/cohabitant or former such). No right is given to any other person.
4. S.85(2) does not contain express provision as to who can apply, but absent express statutory provision, it can only be by a party to the possession proceedings or a person deriving title through a party where permitted by the HA 1985.
5. As the right to apply under s.85 was a personal, non-transmissible right, Art 1 Prot 1 was not engaged, as it does not create rights not given in domestic law.
The estate could not make a posthumous application under s.85, there was therefore no need to consider Mr Austin’s application under CPR 19.8(1)(b).
Londmore LJ and Pill LJ concurred. Appeal dismissed.
There are some odd comments.
Contrary to my earlier suggestion that the House of Lords decision in White v Knowsley might change the landscape for the Court of Appeal on the remaining tolerated trespasser cases, the Court of Appeal found no reason to interfere with this part of the secure tenant ‘tolerated trespasser’ regime.
I’d be interested in other’s views here, as the discussion of the House of Lords judgment in White v Knowsley strikes me as slightly odd. While there was nothing in that judgment that would directly impact on this case, I don’t think it is quite right to say that the mention of Brent v Knightley was ‘without apparent criticism or qualification’ [para 21] for instance, in view of Lord Neuberger’s comments at para 91 of White.
The CoA even suggests that the effects of tolerated trespasserdom were ‘the intention of Parliament’. [paras 49 and 54]. I’m not sure that anybody had any idea what the Courts were going to invent out of Housing Act 1985 in Burrows and after, let alone intend it.
The suggestion of Longmore LJ that one should not seek convoluted technical arguments to try to avoid the intention of the Housing Act 1985 [para 56] would thereby be a little misplaced, with respect, as arguably, the whole TT regime is the result of just one such argument.
On the core argument here. I do wonder whether it is right to describe a statutory right, which is clearly transmissible in some circumstances (e.g. by succession) as a wholly personal right. I’m also not entirely sure that the Art 1 Prot 1 issue is quite so straightforward, given the ECtHR case law.
But as the Court of Appeal considers itself bound by Knightley, these issues would be for the Lords to decide – any news on this going to the Lords will be passed on as soon as we hear.
For Austin: Jan Luba QC and Desmond Rutledge, instructed by Anthony Gold.
For Southwark: Richard Drabble QC and Shaw Kelly, instructed by Southwark Legal
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Knowsley HT v White, Honeyghan-Green v LB Islington & Porter v Shepherds Bush Housing Association [2008] UKHL 70 - for anyone who hasn’t read it yet.
There is lots to unpick here, so I’ll go case by case. It is made easier by there being pretty much one judgment, that of Lord Neuberger. The other substantial judgment, that of Lord Manse, will only be dealt with at the points of dissent.
Knowsley HT v White
Lord Neuberger advances three reasons for an assured tenancy ending only with the execution of the order.
First, ‘it would not otherwise be entirely easy to characterise the status of a tenant in occupation under the shadow of an order for possession’. ‘Tolerated trespasser’ is oxymoronic as a concept and the potential retrospective revival of tenancy presents further conceptual problems. [paras 79-81]
Second, the sheer uncertainty of the tolerated trespasser’s rights and obligations as against the landlord, as found in the case law, and the arguments over the precise terms of a possession order (see Bristol City v Hassan) where orders which appear to have identical effect turn out not to (Thompson v Elmbridge [1987] 1 WLR 1425 as against Harlow v Hall [2006] 1 WLR 2116, for instance). [para 82-83]
In addition, there is the effect on the rights of third parties, e.g. of a a visitor against the landlord under the Defective Premises Act 1972 – which depends on the landlord being under an obligation to the tenant for repair. Here Lord Neuberger throws in the intriguing suggestions that:
It is fair to say that I would incline to the view that it would have such a duty. The suspended order will be on terms that the landlord is entitled to payment for the tenant’s current occupation at a rate which assumes it is liable for repair (either under the terms of the tenancy or pursuant to section 11 of the Landlord and Tenant Act 1985). [para 83]
This looks like a strong suggestion that payment of mesne profits at the same rate as the rent incurs a contractual obligation to repair in the same express and implied terms as the tenancy agreement. And no other judgment dissents from this. (Ooooh. I so want to try this out).
The third reason is that s.9 of the 1988 Act means that the Court retains wide powers to vary or discharge the order. This points to the fact that the tenancy does not end until those powers are at an end. S.9 of the 1988 Act mirrors very closely the wording of s.100 of the 1977 Act, rather than an assumed parity with s.85 of the 1985 Act. There is no equivalent in HA 1988 to s.82(2) of the HA 1985 [paras 85-88]
Logic means that the conclusion also applies to assured tenancies subject to outright possession orders, Artesian Residential Developments v Beck [2000] QB 541 overruled.
Of course, the first two reasons apply equally to the tolerated trespasser regime under Housing Act 1985. Given that Thompson and Hall relied on s.82(2) HA 1985, there is a logical distinction between the two acts. That said, had the point not been determined in Burrows, Lord Neuberger would have reached the same conclusion on the 1985 Act and take ‘the date on which the tenant is to give up possession in pursuance of the order’ in s.82(2) as being the date of execution. The question, it appears was open to consideration, but counsel for all parties apparently suggested that, in view of the Housing & Regeneration Act 2008, and the sheer number of cases involved, it was too late. [paras 90-92]
Proleptic discharge of possession orders (Honeygan-Green & also Porter)
Marshall [2002] HLR 428 held that a suspended possession order could not include a proleptic order such that the possession order was discharged when the arrears and costs were paid, on the basis that the power under s.85(4) HA 1985 could only be exercised in the light of the circumstances prevailing at the time. [para 94]
Lord Neuberger overturns this, based on Payne v Cooper [1958] 1 QB 174, which was not before the Court in Marshall. The analysis proposed by James Stark in Helena Housing v Molyneux is expressly adopted. [para 98]. In any case CPR 3.1(2)(a) may well mean that it would be open to the Court to make such an order in any event. [para 100]
The terms of the proleptic discharge and the suspension do not have to be the same (Lord Mance dissenting). To insist that a discharge can only be achieved via a s.85(4) complete compliance with the order is too take an overly technical view. If a proleptic order is possible and the Court can vary the terms of the order retrospectively, then it would be surprising if the court could not proleptically order discharge on different terms to the suspension [para 102]. Again, Payne v Cooper is cited in support.
While an application via s.85(2) is open to those who have breached the terms of the order, this involves expenditure and effort as well as uncertainty for the tenant, who is unlikely to even know how to approach this. [para 106]. The Court is to consider would be a fair proleptic condition of discharge [para 108] but Lord Mance’s suggestion of ’substantial compliance’ (see para 13 on) is too uncertain – conditions for an SPO should be taken strictly (and the landlord can apply for a warrant on breach – but if the landlord’s application is unreasonable, costs consequences could follow).
Lord Mance’s dissent is based on a reading of Payne v Cooper (which involved an outright possession order converted to an SPO) pointing out that Payne did not involve a situation where the tenant had failed to meet the conditions of the order. Lord Mance saw nothing in Payne that gainsaid the Burrows analysis of s.85(4) and so argued that there was no power to make a proleptic discharge order on other terms than complete compliance with the conditions of the order [paras 21-24].
What isn’t at all clear is what form of words will count as a proleptic discharge. Those in Honeygan-Green’s order would – ‘upon payment of the arrears in full claim do stand dismissed’. Those in Porter’s order wouldn’t – ‘when you have paid the total amounts mentioned, the plaintiff will not be able to take any steps to evict you as a result of this order’. It is impliedly suggested that ‘this order will cease to be enforceable’ would not be sufficient for a proleptic discharge, and this is the form of most N28 and indeed N28A possession orders. So application under s.85(2) or (4) would still be required, unless the tenant waits for a replacement tenancy under H&RA 2008.
Porter v Shepherds Bush HA
The Swindon v Aston trap – paying off all arrears and costs on a breached SPO, or one that provides it is ‘unenforceable’ on such paying off, making it unvariable – falls for the reasons already given. Marshall is wrong on the limits of s.85(4) and Swindon v Aston is wrong on s.85(2).
There is nothing in s.85(2) which expressedly or impliedly prevents a tenant from making an application under s.85(2) after paying off the arrears and costs. If anything, the wide powers of s.85 indicate that the tenant should have such a right.
Honeygan-Green v Islington
While a person must be a secure (or assured) tenant throughout the period from service of the s.122 HA 1985 Notice through to completion, as approved in Bristol City Council v Lovell [1998] 1 WLR 446, the re-instatement of a tenancy on discharge of a possession order entitles the tenant to renew the right to reply on the notice. To argue that the right to buy pursuant to a s.122 notice is lost when the tenancy is determined by a possession order and that it cannot be retrospectively re-instated by the retrospective revival of the tenancy produces unacceptable results under s.122(2) and flys in the face of s.122(1) (‘obliged to give up possession’). It also offends against the Lambeth LBC v Rogers (1999) 32 HLR 361 principle of retrospective revival. [paras 114 -117]
So, an SPO suspends but does not end the right to buy, which is only extinguished on execution. Otherwise, even a tenant on the brink of completion who was subject to a vexatious bankruptcy petition would lose the right.
As Rogers means that the tenancy is revived retrospectively as if it had always been, and in view of the conclusion on assured tenancies, there is no reason to apply a considerably more penal regime on secure over assured tenants in this regard. [paras 121-122]
This may give the tenant a certain advantage – in both a rising and falling market, but there is no power to impose conditions on regaining the RTB under the possession order, s.85(3)(b) does not extend that far. [para 126]
However, the landlord can still serve notices under s.140 and s.141 during the period of trespasserhood, and if the tenant does not (as he cannot) complete in the time specified in the s.141 notice, the s.122 notice is treated as withdrawn.
And there we are. There is much else in there, of course, and the suggestion that their Lordships were prepared to sweep away the whole tolerated trespasser regime – assured and secure – is fascinating. I am already wielding this judgment, both in headline and in nuance, and I’m sure the same is true of all of us. I can’t wait to see what the Court of Appeal make of this changed landscape in the remaining tolerated trespasser cases. I understand, for instance, that written submissions on this judgment were requested by the Court of Appeal in LB Southwark v Austin, in which we await the handing down of the CoA judgment.
Now if only we’d had this Lords decision about 10, or 20 years ago…
Credit to:
On White, solicitor Tony Fearnley of Keoghs and Nicholls, Lindsell and Harris, Counsel Adam Fullwood and Jan Luba QC
On Porter, solicitors Sharpe Pritchard/Olivr Fisher, Counsel Miles Croally and Richard Drabble QC
On Honeygan-Green, solicitors Wilson Barca, Counsel Adrian Jack and Richard Drabble QC again
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For once we were well and truly beaten to the line in publicly announcing a judgment, and in this instance most deservedly so. At about 11 am at the Housing Law Conference Jan Luba QC announced the result of Knowsley HT v White, Honeyghan-Green v LB Islington & Porter v Shepherds Bush Housing Association [2008] UKHL 70 and Garden Court had copies of the judgment available for the assembled multitudes of housing lawyers. I’m very grateful. I couldn’t get online to get a copy during the day.
So, after scanning the judgment during coffee breaks, and being defeated by my mobile dongle and lack of time in a very full day, here we finally are.
And what a result it is. Headlines tonight, arguments tomorrow:
1. Knowsley HT v White
Assured tenancies persist until enforcement of the order for possession – i.e. until eviction. Assured tenants under any form of suspended or outright possession order are not tolerated trespassers and never have been. (Obviously this doesn’t include summary possession where security of tenure has been lost).
2. Porter v Shepherds Bush HA
There is no such thing as an (ex-secure) entrenched trespasser anymore. Paying off the arrears and costs on a possession order does not mean that the tenant cannot apply to vary the possession order under s.85. Swindon v Aston was wrongly decided.
3.Honeygan-Green v LB Islington was rightly decided at the Court of Appeal. A tenant who served notice of right to buy before a suspended possession order was made has that original right to buy revive when the possession order is discharged.
There is a lot that is of interest in the judgment, including an intriguing apparently obiter suggestion of repairing duties to tolerated trespassers and a partial vindication of James Stark on Payne v Cooper (Hi James!). Expect a detailed post tomorrow evening.
Good conference, by the way, very good indeed, although I’m delighted to say there didn’t seem to be anything much raised that we haven’t at least mentioned here. But the thought and detail, my dears, the thought and detail.
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