Prohibition Orders and ending tenancies

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 Aslan was not binding precedent and concerned a landlord relying on the closure order being de facto possession, so the Court of Appeal were simply saying that the tenancy still had to be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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Possession and tagged .

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