Possession orders and RTB

Honeygan-Green v London Borough of Islington [2008] EWCA Civ 363 (22 April 2008)

A quick note on this Court of Appeal case. What happens when a secure tenant who has begun the right to buy process subsequently has a suspended possession order made against them, and then later has the SPO discharged?

The Court of Appeal’s answer, following Enfield London Borough Council v. McKeon [1986] 1 WLR 1007 and Lambeth London Borough Council v. Rogers [1999] 32 HLR 361 and indeed Burrows v. Brent London Borough Council [1996] 1 WLR 1448, was that a revived tenancy brought with it retrospectively all of the rights of the tenant as if the tenancy had never ended. So s.121(1) HA 1985 is of temporary application, while the SPO is in effect.

The upshot is that a right to buy procedure begun before the possession order is merely suspended and revives with the tenancy – so that the original market price valuation still applies.

However, there are some oddities in this case. Firstly, Ms Honeygan was very lucky to have her possession order discharged before Swindon v Aston [2003] happened, as she had breached the terms of her SPO, and under Aston, would not have been able to have the possession order discharged.

Secondly, the Court of Appeal judgment expressly approves the broad discretion of the Court under s.85 HA 1985 in Rogers

Simon Brown LJ made the point that the court’s order reviving the secure tenancy could have been made subject to a condition that the tenant’s damages claim should not be pursued

Hmm. I haven’t got access to the details now, but I seem to recall a recent appeal from a County Court decision at Lambeth County Court that said that conditions set on a s.85 revival/postponement of possession could only be related to the grounds of the original possession order – e.g. rent arrears, where the DJ had set a ‘no disrepair’ condition. It was in Legal Action, I’ll try to find it tomorrow.

Plus, as far as I can tell, this will only apply to discharged SPOs and – presumably – paid off PPOs.

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, Possession, right-to-buy and tagged , , , .

0 Comments

  1. That would be it, not had a chance to check my recollection though, what with being in non-contentious at the moment. Was it an appeal to a CJ or a higher court?

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