Table of contents for Tolerated Trespassers
- Tolerated Trespassers – the aftermath
- Tolerated trespassers: A Luta Continua
- Postponing Possession. Are you now and have you always been a tenant?
- Assured trespassers?
- Assured tenant or trespasser? The waiting begins.
- Postponed assured trespassers verdict soon(ish).
- Permanent trespassers and enforceable possession orders.
- More on London & Quadrant v Ansell
- White v Knowsley – Court of Appeal Judgment
- Reincarnation of Tenancy?
- S.85 Application Randomness
- Permanent trespassers – a fan letter
- Post mortem revival of tenancy
- When does enforceability end?
Or, to be precise, when does a Suspended Possession Order for rent arrears cease to be enforceable? In broad terms, the answer is clear – when all sums due under the order have been paid off. But when is that?
After Marshall v Bradford MC, it is vital for a .s85 application to revive tenancy by varying the possession order that the original possession order remain enforceable, particularly since the failure of the Payne approach in Porter v Shepherds Bush.
I’ve posted on this before, but I was reminded by the coda to James Stark’s article on Porter in the latest Legal Action (May 2008). Incidentally, that is well worth reading. I think it is safe to say Mr Stark is not happy with the Court of Appeal judgment, and is not happy in considerable detail. I remain a fanboy, but he has an uphill battle with this one. I’m going to have to have a think about the detailed argument.
At the end of the article James Stark suggests that it may still be possible to make a revival application if the rent arrears have been paid off if the Court costs remain unpaid. He further suggests that an HB payment which takes the account into credit is impliedly appropriated to rent only.
To which I can only say, it utterly depends on your Court and your DJ. I have seen a number of successful s.85 revival applications on the back of unpaid court costs, but some DJs are taking the L&Q v Ansell Court of Appeal judgment as authority for the proposition that the rent account going into credit by more than the courts costs means that the SPO has been satisfied in total, and refusing revival applications on the basis that the Court has no power under s.85 to vary an unenforceable order, leaving an entrenched tolerated trespasser.
In my view, it is not correct to find support for this view in Ansell. In that case, the County Court judge found that the debt and costs were satisfied by the rent account going into credit, but the specific issue wasn’t appealed, so the Court of Appeal couldn’t find on it (although they sounded very doubtful that this was correct).
More worryingly, there has also been a line of reasoning that the SPO in form N28 rolls costs and arrears into one judgment debt, and one cannot expect the landlord to collect arrears and costs separately. Hence a sufficient credit will satisfy the debt.
I’m not sure about this, particularly when the landlord has maintained separate court costs accounts/not rolled the full judgment debt into the arrears/not collected or debited the court costs. It ought, at least, to be possible for the tenant to specifically appropriate payments to the rent. The suggestion that HB is impliedly appropriated to the rent may also help here.
But, with some DJs, this just isn’t working.
Until there is a decent appeal on the issue, we are left at the mercy of the individual view of District Judges. In my area, I know of a couple of appeals to Circuit Judges that were settled prior to hearing with an offer of grant of new tenancy – clearly the local authorities concerned were keen to maintain the alleged Ansell position.
Does anybody know of a Circuit Judge, or higher case, on this issue? Because I’m getting very tired of the mess.
Of course, the proposed ‘replacement’ tenancies in the Housing & Regeneration bill will sort this out, at least as it stands at present, but that is a long time to wait.