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More on tolerated trespassers

By J

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.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


  1. JS

    I think we don’t need to worry about such a scenario for this reason . The vast majority of ASB PPOs and indeed before that SPOs include a shall cease to be enforceable clause ( or most certainly ought to have ) say 2 years or 1 year from the date of the order .

    The continued availability of proleptic discharge means that at the end of that period , unless the order has been enforced and the tenant evicted – the order will stand discharged .

    What I would strongly urge all practitioners now is to include a proleptic discharge provision in every conditional possession order of whatever type so that once complied with it is discharged . Otherwise the dead hand of the zombie possession order might stop you for example exercising your right to buy .

    • J

      I agree that now all conditional orders should have some “cease to be enforceable” / “shall stand discharged” provision for the reasons you point out.

      I think my concern is probably better directed to those people who have older possession orders which didn’t have any such provisions in them. Those “historic” (for want of a better word) possession orders will be caught by this concern and it is they who will have to make applications under s.85(4) as unamended and they who will have to have the arguments about the extent of their compliance.

      It does seem to me that there is – potentially – a significant difference between the results those people might achieve, depending on whether they’re applying under s.85(4) as unameneded or amended.

      • Sm

        Practitioners should be cautious not to place too much reliance on the phrase “shall cease to be enforceable”. My view is that this form of words does not have the effect of discharging the order (as is implicit in Neuberger LJ’s judgment when he refers only to the Honeygan-Green possession order containing a proleptic discharge provision). It probably leaves the door open to a landlord to apply to postpone the date for possession thereby reviving the order for enforcement purposes. A clear discharge provision should be preferred, in terms that the claim stands dismissed.

        • NL

          I’m with you – it doesn’t discharge the order proleptically. It just leaves it without effect. But I can’t see the ‘landlord varying the date of possession’ argument. ‘Cease to be enforceable’ has nothing to do with the date of possession but with fulfilling (now in broad terms) the conditions. If the arrears and costs are paid off, the order is not enforceable, not matter what the landlord later seeks to do to vary the date of possession, surely.

          But simply on the basis that the order is left dangling, I agree that a proleptic discharge term should be sought. No need to dismiss the claim on a discharge, though, I’d have thought.

        • J

          Yes, I see the important conceptual distinction between “shall stand discharged when…” and “shall cease to be enforceable…” as the latter leaves a possession order in existance. If that is correct, then why can’t either party apply to vary that order? I don’t see anything in Lord Neuberger’s judgment to rule that out.

          Say, for example, a tenant has a possession order made against them on the grounds of rent arrears, with provision that it shall cease to be enforceable once the arrears are cleared. Shortly after the arrears are cleared, the tenant engages in an act of signifiant ASB. Why could the landlord not apply – Sheffield CC v Hopkins / Manchester CC v Finn – to vary the order so as to revive it with a new date for possession?

          Hence, and in agreement with JS, the importance of a ‘discharge’ provision, not merely a ‘cease to be enforceable’ provision.

        • JS

          I disagree but take the view that we should be seeking to add and shall stand discharged for the purposes of clarity.

          Nothing in the HL judgment suggests that a cease to be enforceable order can be rendered enforceable again .

          The reason I disagree is as follows . It was unfortunate in a way that the housing association conceded that Aston was wrong and was compromised on the basis of remitting his discharge application i.e suggesting that a the N28 in effect from 1993-2001 did not contain a discharge provision . If you read Lord Neuberger’s analysis of the Sherrin -v- Brand case he clearly accepts that had the effect of discharge ( the effect of that order is pretty clear)as Lord Evershed MR held in Payne . That order of course is in ” cease to be enforceable form ” .
          It does not seem to have been pointed out, perhaps because there was no oral argument in Porter, that it is illogical for the old form of N28 to have that effect but not the 1993-2001 form , the latter being supposedly in plainer English !

        • NL

          @JS – on becoming enforeable again – yes, exactly. I suppose the landlord may technically be able to apply under s.85(2) to vary the date of possession on a paid off ‘unenforceable’ order, but it doesn’t make it enforceable again, whether on a new ground of possession (Finn/Hopkins) or not. Both Finn and Hopkins were ‘live’ SPOs, after all.

          Lord Neuberger’s example of the tenant varying conditions under s.85(2) so that they have been complied with for a s.85(4) discharge does not involve any change to the unenforceability of the order.

          But, although I take the Payne point on the effect of ‘cease to be enforceable’ being discharge, this is not what the Lords found in Knowsley v White. For that reason, I’d go for ‘stand discharged’, not just for clarity but for certainty.

          I still don’t think there is any need to also seek the dismissal of the claim, as in Sm’s suggestion, though. I think that would almost certainly run into trouble with the Court if the original Claim was well founded.

        • JS

          NL – but he doesn’t say that at all . If you read paragraphs 103-104 in particular it is plain that he is approving a ” cease to be enforceable order ” as effecting discharge . Which is what makes para 110 so odd . The reason being as I see it is the agreement already reached in Aston , which ought have been otiose , if he had followed his own findings in 103-104 .

        • NL

          JS. I’m looking at para 113 in conjunction with 106. A way out of Swindon v Aston is given as an application under 85(2) to vary the conditions such that they are complied with, then via 85(4) to discharge. Granted, Marshall is also said to be wrong on the strict compliance issue, so one could go straight for s.85(4).

          Given that there is no express statement that the Porter form of words is a proleptic discharge, and in fact the whole discussion of the Porter order is on the availability of s.85(4) by application – after breach – I can’t read it as an endorsement of ‘cease to be enforceable’ meaning discharge, for all the approval of Payne. I certainly wouldn’t want to rely on it without more.

        • JS

          J that leads to the interesting argument that now the wording of the standard N28A prevents a Finn application as on its own terms an application to fix can only be made if the conditions on the order have not been complied with.

          NL – I think Lord N’s analysis of Sherrin -v- Brand is clear – he just then goes on to confuse matters !

  2. JS

    One more thing – the phrase ” structured discretion ” fills me with dread . Anyone who saw the first draft of the “Renting Homes” proposals will know what I mean . All too often it is an excuse for leaving out of consideration relevant and pro-tenant factors .

    Consider the waste of space that is Section 85A Housing Act 1985 for a start!

    • J

      85A is a waste of space because it merely codfies the position which the case-law had already reached. We don’t have the same body of case-law as regards the discretion under s.85(4) and I fear that we’re now going to see such cases going to the Court of Appeal over the next few years to deal with this point.

      Now, as a lawyer, I’m quite content for more cases and more arguable points to be taken. But, mindful of what their Lordships said in Knowsley, is it really in the interests of the occupiers of residential property that such cases be argued if it is possible to clarify the law by statute?

      Finally, I do dislike “at large” discretion. It is fundamental to any concept of justice that “like cases be treated alike” – the wider the discretion given to the DJ, the more likely it is that different results will occur in factually similar cases, depending where you are in the country.

      • Sm

        Questions, questions…

        Is there not argument to be had in respect of whether this “at large discretion” exists at all? It seems to me possible, at least, to argue that Neuberger LJ approves of strict compliance (contrary to the views of Mance LJ). Are the comments in para.107 not referring to the need to have less restrictive terms of compliance for discharge provisions than for postponing possession, precisely in order to remove the potential draconian effects of strict compliance in the context of the former. This would explain the reference at para.107: “…so can [the court] proleptically exercise its powers under section 85(2) to vary the terms of suspension for the purpose of giving effect to its power of discharge”.

        Further: “the court can also then decide the extent to which compliance with the STRICT terms of the conditions will not be required in order for the order to be discharged.” Does this not refer to compliance with the strict terms of the conditions on which possession is postponed – i.e. that such conditions may be inappropriate terms on which to order discharge – rather than not requiring strict compliance with the terms at all.

        If this argument is “up for grabs” then are we not better off with the amended version of s.85(4), despite its failings?

        • NL

          But s.85(4) is specifically and only about discharge/rescinding, not varying or postponing. So is the proposed amendment. Lord Neuberger in Knowsley v White is dealing with the effect of Marshall and Swindon v Aston being the requirement for strict compliance for the possibility of a discharge (rather than varying) of the PO – part of the entrenched trespasser problem as was.

          So I’m not wholly sure what your point is, I’m afraid.

        • J

          I think the point is:
          (a) if the date for possession is postponed / suspended on terms, those terms must be strictly complied with or the order is breached and the landlord entitled to proceed with fixing a date / seeking a warrant as the case may be – Lord Neuberger at [109]
          (b) however, when considering a discharge under s.85(4) (as unamended), the court has a much wider discretion as to the extent to which compliance is necessary. In this regard, the tenant need not show strict compliance, as in (a) but it will be a matter for the court in each case [107].

        • NL

          J. Yes, that is how I understood Knowsley. And to that extent I agree with Sm. But I didn’t think anyone was suggesting that the situtation was otherwise, which was why I was and remain puzzled.

          I also don’t see that this alters the terms of the discussion on the old/amended s.85(4). The amended clause wouldn’t make any difference to the requirement for strict compliance with the terms of the PO during its life, and the landlord can go for warrant on breach (or apply to set date for possession, if PPO) just the same.

        • Sm

          I am struggling to see how this can be right when Mance LJ at para.12 refers to Neuberger LJ adopting a strict interpretation of s.85(4). This is the reason Mance LJ posits a “substantial” approach to compliance. The crux of the reasoning at para.107 is directed at why it is possible to have different terms requiring strict compliance re possession, from those for discharge i.e. possession postponed on CR + £3.25 but order discharged on clearance of the arrears only. According to Neuberger LJ, one need not comply with the former in order to activate the proleptic discharge provision. Mance does not agree with this on the basis that “compliance” in s.85(4) is referable to the terms of postponement of possession.

        • NL

          Yes. but Neuberger is the majority ;-)

          Looking at paras 110 – 113, Neuberger’s view is that an application for discharge can be made under 85(4) without strict compliance (Swindon v Aston, Marshall), but with substantial compliance (arrears and costs paid off, in the end). He is quite clear that Marshall is wrong on the availability of s.85(4) where there has been broad compliance such that the arrears and costs are paid off, but technical breach of the conditions of the order (x per week).

          Granted para 107 is about proleptic discharge and varying conditions for suspension and for discharge, but the principle is translated to discharge applications in terms of the operation of s.85(4).

          But in either case, compliance with conditions to avoid breach and potential enforcement, is strict.

  3. NL

    I see the point, but my suspicion is that it is without much practical effect. Given that ‘compliance’ is a matter of the Court’s discretion – Knowsley v White – I would suspect that any argument over the degree of the tenant’s compliance would be virtually identical to an argument about the ‘conduct of the tenant in regard to those conditions'[in the order]. The conduct in relation to a breach or breaches will still be key – meaning that the focus remains on breach and its ‘excusability’.

    Granted, the amended s.85 would, semantically at least, be more tenant leaning, but in practice? At best a small shift in the balancing point of the scales of discretion. And Knowsley v White gives a strong example of the operative direction of discretion in the casting aside of Marshall, if not actually of Burrows (at least for all except Lord Mance).

    I could well be wrong, of course, but it does look something like a distinction without a difference.

    • J

      We know that neither strict nor substantial compliance are necessary, but it seems clear that there has to be *some* degree of compliance or else, why would s.85(4) say “if the conditions are complied with…”?

      What we’re ushering in is a period of litigation to determine the extent of that compliance. The cases will be argued and appealed because – inevitably – different DJs are going to take different views and the CA will see it as its job to ensure that practical guidance is given. I don’t see why that is desirable when the amended version of s.85(4) would do away with the need for such cases.

      • NL

        But, practically, ‘conduct of the tenant in regard to those conditions’ would only be an issue where there is breach. Exactly the same issues would be argued in either event. And a view on ‘conduct’ would involve the same variable exercise of discretion by the Court.

        However, I would agree that there would be the added burden on the tenant of ensuring that the Court was up to speed with Lord Neuberger in Knowsley v White on ‘compliance’.

  4. JS

    I agree with NL here . Considering J’s example quite plainly a relevant factor would be the ” conduct of the tenant ” i.e in removing her difficult partner from the premises.

    Moreover, I have little doubt that we would have had a great deal of argument about what that structured discretion meant i.e could you ignore the bad behaviour of the tenant’s visitors or other residents just because the tenant was powerless?

    Of course, that must be a relevant factor and we all know the arguments that can be deployed in a tenant’s favour in such a situation but leaving that behaviour entirely out of account is something a court will baulk at.

    So three cheers for at large discretion from me ! As Whitehouse demonstrates only very recently it operates very well in the main.

    I am really surprised if there are SPO or PPOs in nuisance cases without sunset clauses – the guidance from the CA has been clear on this for a considerable time.

  5. JS

    Finally , that is the point of ” at large ” discretion – cases may be alike but they are very very seldom the same .

  6. JS

    I omitted one point which I meant to make earlier. The example J quotes can easily be dealt with so long as there is the power to discharge proleptically.

    If a tenant in that scenario where there had been a breach but had excluded the violent partner permanently ( and bearing in mind the argument of the landlord might well be that the order should merely be postponed further in case of a reconciliation with that partner ) the court can simply adopt the solution proposed in Burrows . The court can change the conditions to be complied with and then order discharge e.g postpone for 24 hours and so long as no further breach discharge .

    • NL

      Interesting, but not entirely clear. Here is para 20 in full:

      “However in view of the wider interpretation which the House of Lords has now given to the court’s powers in section 85(4) (and thus by implication in section 9(4)also), the Government believes that it would be preferable not to commence the amendments made by paragraphs 3(3) and 8(3) of Schedule 11. We take the view that the amendments would now have the effect of limiting the court’s powers as expounded by the House of Lords, because of the requirement to have regard to the tenant’s conduct in connection with the conditions imposed in the possession order.”

      Doesn’t really explain the limiting effect.

  7. JS

    No it doesn’t but the ” limiting effect ” is clear . If the court has to have regard to the tenant’s conduct then that presupposes that there is no power of proleptic discharge as how can you take into account the tenant’s conduct if there has been no conduct yet ?

    It has to be remembered that the amendments were enacted in the mistaken belief that LJ Chadwick’s analysis in Marshall -v-Bradford MBC was correct and that you could only discharge after there had been strict compliance with conditions. The amendments were designed to temper this so that strict compliance only became a factor to consider along with the tenant’s conduct.

    That was of course wrong for the Payne-v- Cooper reasons. White means that the effect of Section 85(4) now is that the conditions imposed proleptically for discharge can be different e.g payment off of all arrears and costs rather than always making the strict Section 85(3) weekly payment .

    Thus we are left in a much better position by no amendment

    (1) Proleptic discharge is retained

    (2) For later discharge the court has a discretion , which will self-evidently include all the circumstances of the case – which is consistent with reasonableness and the other exercises of the extended discretion

    (3) The scenario raised by J above is easily dealt with – even if a court felt that due to the activities of an ex-partner there could not be said to be compliance the court has the flexibility to impose new conditions and proleptically discharge on compliance and those conditions need only be complied with for a very short period .

    • NL

      Thanks, JS. That is how I had understood your view and I’m happy to find I had it right.

      Its an arguable point, surely – ‘can’t order discharge without having had regard to tenant’s conduct in relation to the conditions’ arguably doesn’t necessarily mean all of the tenant’s conduct up to the point of discharge.

      In the ASB example used above, the court could order the proleptic discharge (say 4 weeks with no further breach) precisely because it has had regard to the tenant’s conduct, including the steps she has taken in relation to the breach.

      • JS

        NL- exactly . The new wording added nothing after White as it required the court both to consider the questions of compliance and the conduct of the tenant . Hence, I cannot see how you could possibly – under the question of compliance held out of account the behaviour of residents and visitors .

        I am not sure what you mean in your second paragraph – I don’t see how you can ignore tenant’s conduct up until the date the discharge order is made – but evidently it can be held out of account if there is no attempt to enforce e.g a 2 yr PPO for ASB – where there is one loud and noisy party which constitutes a breach but otherwise there are no breaches and the LL does not consider it appropriate to enforce – the order will be discharged despite the breach of the Section 85(2) condition .

        Under the unamended wording as now remains in force – in fact the same considerations all would be taken into account i.e compliance and the tenant’s conduct as Lord Neuberger in essence explains in his judgment. The only real effect of the amendment would have been to abolish proleptic discharge which would have been disastrous in my view .

        • NL

          JS – what I meant was that I don’t see that ‘having had regard to the tenant’s conduct’ in relation to the conditions, in the amended 85(4) necessarily rules out proleptic discharge. At the point of, say, a varied order, regard would be had to the tenant’s conduct up to that point, but it would still be open to the court to make an order of the ‘discharged in four weeks if no breach in the meantime’ variety. Regard would have been had to prior conduct.

          But on the ability to put in a proleptic discharge clause in the initial possession order at the time of making, I take your point.

        • JS

          Yes – the issue was the risk that the amendment ruled out discharge until there was some conduct that could be considered as pointed out in my response above to J’s post.

          So perhaps it would be clearer to say initial proleptic discharge !

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