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.]