T v W. County Court at Central London. 16 April 2019 (Unreported)

T was the owner of a property. The property was subject to a prohibition order served by LB Croydon. Nonetheless, T let a dwelling in the property to W. (T denied knowledge of the prohibition order, in a somwhat unlikely manner, but nothing turned on this.)

LB Croydon ceased paying housing benefit for W’s tenancy, apparently on realising that the property was subject to a prohibition order. Considerable rent arrears accrued.

T served a section 8 notice seeking possession, then issued possession proceedings. W defended in person at first instance and a possession order was made.

W obtained representation and permission to appeal was sought on the ground that the effect of section 33 Housing Act 2004 was to remove the statutory wrapping of Part 1 Housing Act 1988, leaving only a common law or contractual tenancy, which must be ended by Notice to Quit, not a Notice Seeking Possession.

Section 33 provides:

Recovery of possession of premises in order to comply with order

Nothing in—
(a)the Rent Act 1977 (c. 42) or the Rent (Agriculture) Act 1976 (c. 80), or

(b)Part 1 of the Housing Act 1988 (c. 50),

prevents possession being obtained by the owner of any specified premises in relation to which a prohibition order is operative if possession of the premises is necessary for the purpose of complying with the order.

W argued that the Court of Appeal decision in Aslan v Murphy (1989) 21 HLR 532 (with regard to a closure order and similar terms) had insisted that a closure order resulted in a landlord having to end a contractual tenancy. Further, section 33 referred to the whole of Part 1 HA 1988, not simply section 8 or section 21, so also disapplying the definition of an assured tenancy , security of tenure etc.

However, the Circuit Judge refused permission to appeal at a rolled up hearing, holding that s.33 was geared entirely to the landlord gaining possession in a situation of hazardous premises, not to the type of tenancy. Aslan was not binding precedent and concerned a landlord relying on the closure order being de facto possession, so the Court of Appeal were simply saying that the tenancy still had to be determined, not how. The section 8 NSP was validly served and relied upon. In any event, T had now served an NTQ which would expire in some 10 days time.