London Borough of Lewisham -v- Litchmore. 2 October 2009, Bromley County Court
Since the beginning of replacement tenancies on May 2009, there have, rather surprisingly, not been any reports on cases involving the Housing and Regeneration Act 2008 Schedule 11 s.21 – when the new tenancy and the original tenancy are to be treated as the same and continuous for the purposes of a relevant claim (for breach of tenancy condition or statutory duty). Now, we’ve heard about one such case.
For an ex-tolerated trespasser with, say, a disrepair claim extending back over the period prior to May 2009, there appear to be two routes to recovering tenancy for the whole period since the possession order and with it the right to claim for breach of condition of tenancy. One is to make a s.85 Housing Act 1985 application to postpone possession or for discharge within the original possession proceedings; the other is to apply within issued disrepair proceedings for an order that the replacement tenancy to be treated as the same tenancy and continuous under s.21(3) Schedule 11 HRA 2008. Of the two, the s.85 application has other benefits for the tenant, for example by altering a previous possession order so that the landlord can’t issue a warrant without notice.
However, there are always complications. In LB Lewisham -v- Litchmore, there was a disrepair counterclaim to a fresh possession claim by Lewisham on the replacement tenancy, but the Defendant had been a tolerated trespasser for some years before the replacement tenancy began in May 2009, as the result of a previous possession order. The disrepair counterclaim was limited by the lengthy period of tolerated trespasser-hood. An application for an order under s.21(3) was made by the Defendant for the replacement tenancy to be treated as the same and continuous. Lewisham opposed the application.
The Court made the Order that the replacement tenancy be deemed the same tenancy and continuous from the date of possession in the original order, so that the counterclaim could include the full period of alleged disrepair. Lewisham were granted permission to appeal.
Interesting to see that a Court is prepared to exercise the s.21 discretion. S.21(3) states:
In proceedings on a relevant claim the court concerned may order that the new tenancy and the original tenancy are to be treated for the purposes of the claim as—
(a) the same tenancy, and
(b) a tenancy which continued uninterrupted throughout the termination period.
Will this discretion be effectively the same as that exercised under s.85 Housing Act 1985?
We’ll keep our ears open for news of Lewisham’s appeal.
[Thanks to Charlotte Collins at Anthony Gold.]
Once the application is successful Paragraph 21(7)(a) enables a non-transfer replacement tenant to sue under the original tenancy agreement only and paragraph 21(7)(b) enables a transferred replacement tenant to sue for breach of statutory duty.
What happens if the original tenancy agreement was very sparse? Is a non-transfer tenant shut out from relying on s.11 LTA 1985?
Mike, is that right? As I read it the non-transfer tenant can claim under a) and b). Here are s.21 (3) & (4):
(3) In proceedings on a relevant claim the court concerned may order that the new tenancy and the original tenancy are to be treated for the purposes of the claim as—
(a) the same tenancy, and
(b) a tenancy which continued uninterrupted throughout the termination period.
(4) The following are relevant claims—
(a) a claim by the ex-tenant or the ex-landlord against the other for breach of a term or condition of the original tenancy—
(i) in respect of which proceedings are brought on or after the commencement date, or
(ii) in respect of which proceedings were brought, but were not finally determined, before that date,
(b) a claim by the ex-tenant against the ex-landlord for breach of statutory duty in respect of which proceedings are or were brought as mentioned in paragraph (a)(i) or (ii), […]
So both a) and b) are relevant claims for a non-transferred replacement tenant.
Also the Housing (Replacement of Terminated Tenancies) (Successor Landlords)(England) Order 2009 says at 6 that the transferred tenant can claim against the orginal landlord for a) and b),[6(7)] or against the successor landlord for a) and b) [6(9)] or where there was a transfer of rights and liabilities in relation to the orginal tenancy to the successor, the tenant can claim against the successor for breach of term of original tenancy [6(8)].
NL – I am not sure: it is all so confusing about what is the current version of Schedule 11. Hasn’t the successor SI replaced the old s.21(4) with s.21(7)? See below:
(7) The following are claims specified for the purposes of sub-paragraph (3)—
(a) a claim by the ex-tenant or the ex-landlord against the other for breach of a term or condition of the original tenancy—
(i) in respect of which proceedings are brought on or after the commencement date, or
(ii) in respect of which proceedings were brought, but were not finally determined, before that date, and
(b) a claim by the ex-tenant against the ex-landlord for breach of statutory duty—
(i) where the alleged breach occurred before the relevant interest was transferred to the initial transferee, and
(ii) in respect of which proceedings are or were brought as mentioned in paragraph (a)(i) or (ii).
It looks like s.21(7)(b) is conjunctive and both requirements need to be satisfied before statutory duty claim can be run.
It is draftsman error in not properly reflecting the first version of Schedule 11. The order takes care of successor tenants but may, inadvertently, have stitched up normal ex-tenants.
But the SI hasn’t replaced s.21(4) or any of s.21 for non-successor tenant cases. Hence para 2 of the SI:
Replacement of terminated tenancies: Successor Landlord cases
2. Part 2 of Schedule 11 to the HRA 2008 shall apply, subject to the modifications specified in articles 3 to 7, to successor landlord cases.
(and then at 6.
Para 21 (continuity of tenancies) applies as if […]
So the SI does not replace Sch 11, but modifies it for successor landlord cases only.
And then the conjunctive point, this makes sense for the successor tenant as the claim specified in SI 6(7)(b) is against the initial landlord. So the breach of statutory duty has to be before transfer.
NL – thanks that is very helpful. It is tricky – instead of having Sched 11 modified by the Order in the usual way – we have two separate versions of Sched 11 existing in parallel.
My comment should, of course, have been prefaced by ‘I think that…’ Usual disclaimers apply.
Quandry – Part 1 Schedule 11 Housing & Regeneration Act 2008 amends s.127 Housing Act 1996 to state that Introductory only ends when possession order is enforced (i.e. by warrant being enforced)
Supposing claimant landlord seeks and gains outright possession against Introductory tenant for rent arrears but then does NOT enforce order.
Surely Introductory tenancy then continues indefinitely – what about supposed 12 month trial period?
Is it me or is it not-thought-out drafting?
The HRA Schedule 11 11(3) amends the 1996 Act to state that “(1A) In such a case, the tenancy ends when the order is executed”, not the ‘introductory’ only ends at enforcement. I’ve not looked or thought any further, but might there be an argument that if not enforced within the 12 months, a secure tenancy results? This is seriously speculative as I haven’t done the cross referential reading, so probably wrong…
I’m too wound up in several urgent and messy cases at the moment to actually do the work required, I’m afraid.
This point was I understand raised by Caroline Hunter and Jane Petrie with the DCLG and they went ahead anyway.
I think that there is an answer to any pre H&RA intros where this happened namely that it was impossible for tolerated trespass to occur when an intro tenant was allowed to remain. The tenancy came to an end when the possession order was made . The only possible explanation then of the tenant remaining in occupation is a secure tenancy.
For post H & RA intros – I cannot imagine that it was intended that it was intended that we have a new permanent limbo of intro tenancies but that is how the section reads literally perhaps the way round it is to regard the extension of the trial period ending with the possession order ? or otherwise after 12 months from commencement.
Yeah – what he said. particularly the last bit.
Literal maybe BUT if Introductory tenancy trial period of 12 months ‘stops’ when possesion proceedings are begun and Housing Act 1996 specifically refers to ‘introductory tenancy’, then Housing & Regeneration Act 2008 amendment MUST mean that can never become a secure tenancy.
Further if Introductory tenants never became ‘tolerated trespassers’ and remained in occupation after their pre H&RA tenancy was ended – then what did they become – implied secure by default?
Anyway why would DCLG allow any mention of Introductory tenancies in Schedule 11 H&RA unless they also thought that tolerated trespasser regime could have applied to Introductory tenancies?
They did think that and they were plainly wrong to do so . They also thought it applied to assured tenancies and the HL kindly put them right on it .
I agree that ” literally” such a construction is possible and that was what the two academic referred to above pointed out. Indeed, the amendments made to Section 130(2) no doubt to ensure that introdcutory status remains between the usual short period between possession and eviction support your view .
In which case I think we have to go back to the original line of attack i.e that it is impossible to have an intro TT and that any agreement that the tenant is to be allowed to occupy beyond a short period is only consistent with the grant of a new tenancy otherwise the statutory purpose of a short intro tenancy would be frustrated.
Sorry Richard one oversight on your other point – this will I agree require Section 124(2) Housing Act 1996 to be read as not applying to this situation. That section was intended to ensure all new tenancies became intros – but that meant all NEW tenancies not replacement after intro period has expired .
Frankly, we will have to be creative to ensure Parliament’s obvious intention is met.
Still musing on tolerated trespassers (TT). Besides too dangerous to go out in arctic conditions
Presumably a secure tenant of RSL who had become a TT somewhere between Thompson-v-Elmbridge BC 1987 and if still secure as at 20 May 2009 would also get a new replacement secure tenancy? If so, does their Fair Rent also get revived from 20 May 2009 and if they are being charged a different rent (like assured) could they not claim either a refund of the difference and/or if RSL started possession relying on Ground 10 – that the rent is not lawfully due because they had been charged the wrong rent?
Thought for the weekend following McIntyre-v-Gentoo 2010