Postponing Possession. Are you now and have you always been a tenant?

So, tolerated trespassers, where were we? Ah yes.

The Court has the power, under s.85(2) Housing Act 1985, to postpone the date of possession of an existing Suspended Possession Order for any period it sees fit even if the conditions of the SPO have been breached. If the terms of the SPO are complied with, the former tenant can apply to have the SPO discharged under s.85(4). If the Court postpones the date of possession, the tenancy is revived, with all the respective covenants of landlord and tenant.

However, the SPO has to still be in existence, or rather its conditions unsatisfied, in order for an application under s.85 to be made, as we know.

Following my initial question, I have found out that there is public funding for someone to make an application, and lo, the firm is making quite a few. These applications will be very common as a precursor to a disrepair claim, I suspect, both for breached SPOs in general and N28 victims post 2001.

But this raises some interesting questions, both legal and about the client’s interests.

Firstly, when is the SPO still in existence?

Now, I’m going to be a little cagey here, because my server logs show a startlingly high number of hits from local authorities on my discussions of Postponed Possession Orders, and I’m sorry but they are going to have to work the details of this one out for themselves. (The best way to avoid disrepair claims is still to do the repairs). But, to put it vaguely, the SPO remains in operation until the terms of the SPO are satisfied and there are all sorts of ways in which this might not be the case, even if the arrears of rent have been fully paid off.

Secondly, client’s interests.

Now, this depends entirely on the Claimant’s response to the application. But, as a semi-hypothetical (meaning that I have seen something like this in practice), it might be that the Claimant will offer that a tenancy has revived at the time that the rent arrears were paid off. The effect of a s.85 application would be to revive the tenancy from the date of possession given in the original SPO (or point of breach, depending on the wording of the SPO). The difference between these dates could be years, which is clearly potentially significant for the value of a disrepair claim.

So, a potential plus for the client is extra years on a disrepair claim. The potential danger is that the postponement of possession is not granted on the application, leaving the client without a tenancy, even the one offered by the landlord. This is a risk, and one that is, I think quite difficult for clients in this position to grasp. It needs careful explanation.

Having said this, I would like to enthusiastically applaud one of my supervising solicitors, who pulled off a perfect postponement of possession application based on these sort of grounds with no outstanding rent arrears, in the face of opposition, and with costs given against the opponent.

My entirely anecdotal sense is that Courts are generally looking fairly favourably on s.85 applications, although the firm has had refusals in circumstances/for reasons that don’t make a lot of sense. Therein lies the risk for the client.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, secure-tenancy, Tolerated trespasser and tagged , , .

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