Mr Al-Emarah was the sole statutory (Rent Act) tenant of the matrimonial home. On the breakdown of his marriage, he moved out and arrears accrued. The landlords obtained a possession order, suspended on terms that he pay current rent and £1,000 per month off the arrears. Mrs Al-Emarah then obtained housing benefit which covered all of the rent apart from £8–10 per week. Mr Al-Emarah was subsequently made bankrupt. In proceedings brought under Matrimonial Homes Act 1983 Sch 1 para 3(1) (now Family Law Act 1996 Sch 7), Connell J made an order that Mrs Al-Emarah was deemed to be the sole statutory tenant, but subject to the terms of the suspended possession order.

 

The defendant was a secure tenant. The council was granted a suspended possession order in proceedings based on arrears of rent. The order in the pre-1994 County Court Form N28 stated, ‘… the judgment shall cease to be enforceable when the arrears of rent, mesne profits and costs … are satisfied’. The tenants failed to comply with the terms of the order and the council applied for and obtained a warrant for possession. The tenants successfully applied for it to be suspended on terms. Further arrears accrued and the council obtained a second warrant. On the eve of execution of the warrant, the tenants supplied a cheque for £300 towards the arrears and asked how they could stop the eviction the following day. A council officer told them that only a cash payment or a banker’s draft could prevent it. The tenants raised the cash and paid it into the council offices the next morning. They returned home with the receipt to find the bailiffs already at the property. Their application to the county court to set aside the execution was dismissed.

 

 

In a High Court claim against a former licensee of a house, the claimant obtained a possession order and then a warrant of possession, which was executed. The defendant’s application for an order restoring her to possession was dismissed (Fineland Properties v Pritchard [No 4] [2011] EWHC 1063 (Ch), June 2011 Legal Action 24). The defendant regained access to the property and changed the locks. The claimant obtained and enforced a writ of restitution and placed people inside the property to occupy it. The claimant then applied for an injunction to restrain the defendant from trespassing on the property and to prevent her from interfering with the quiet enjoyment of the occupiers of the property.

 

See Housing Law Casebook 4th edition, I2.1.

 

 

See Housing Law Casebook 4th edition, I2.4.

 

 

See Housing Law Casebook 4th edition, I2.9.

 

 

See Housing Law Casebook 4th edition, I2.11.

 

See Housing Law Casebook 4th edition, I2.13.

 

See Housing Law Casebook 4th edition, I2.15.

 

Following the decision of the Supreme Court in Pinnock, Manchester wanted to enforce the possession order originally made in the county court. However, Mr Pinnock argued that after the date specified in the order for the giving up of possession, he had become a tolerated trespasser and that as a result of the abolition of the status of tolerated trespasser by Housing and Regeneration Act 2008 s299 and Sch 11, he enjoyed a new tenancy with the same terms as the original tenancy. Manchester argued that the correct approach was to vary the original possession order made by the county court judge, and insert a new date for possession. Mr Pinnock argued that Housing Act 1980 s89(1) prohibited the court from making an order for possession more than six weeks after 22 December 2008 (ie, when the county court judge had first made a possession order).

 

See Housing Law Casebook, 4th edition, I3.1

 

In February 2000 a possession order was made against Ms Finn, a secure tenant, as a result of arrears of rent of over £1,860. The order was postponed on terms as to the payment of rent and instalments of £2.60 per week towards the arrears. Ms Finn complied with the terms of the order. In November 2000 the police found stolen property valued at £28,000 at the property. In August 2001 the police found five stolen microwaves at the property. On each occasion the defendant received a non-custodial sentence. In December 2001 the council applied to have the possession order varied and for the substitution of a forthwith order. A district judge dismissed the application on the ground that he did not have jurisdiction. On appeal HHJ Holman allowed the council’s appeal and remitted the matter to a district judge. Ms Finn appealed to the Court of Appeal contending that, once an order for possession is made and postponed by the court, the court is functus officio and there is no jurisdiction to vary or revoke it.

 

In possession proceedings based on anti-social behaviour, a district judge made an outright possession order. The defendant sought permission to appeal, claiming that the district judge had misunderstood the provisions of the Housing Acts in stating that the local authority had ‘a broad duty to house’ Mr Hoskin, rather than the more limited duty contained in Housing Act 1996 s190.

 

On 17 December 1980, the plaintiff, the landlord of a Rent Act protected tenant, obtained an order for possession, suspended on payment of arrears of £771 and costs of £50 by 7 January 1981. On 13 January 1981, the landlord issued a warrant. The tenant applied to suspend the warrant on the ground that all arrears had been paid. That application was refused. The tenant made a further application and the warrant was suspended for 21 days, subject to an enquiry by the registrar (now district judge) about whether the tenant had complied with the terms of the possession order. The enquiry was completed outside the 21-day period. The registrar found that the tenant owed £73. A cheque for the outstanding money was sent 17 days later. The tenant then applied to discharge the possession order and the warrant. The court suspended the possession order on condition that the tenant paid the current rent. The landlord appealed.

 

Mr Whibley was a secure tenant. In 2005, he was convicted of cultivating cannabis in his flat. In January 2006, Wandsworth initiated possession proceedings, relying on arrears of £615 and the conviction for growing cannabis. While this claim was pending, Mr Whibley was again convicted of cultivating cannabis. On both occasions, he admitted having a drug problem and was given community sentences directed to his rehabilitation. In November 2006, District Judge Tilbury found the grounds for possession made out and made a postponed possession order, with conditions of postponement relating both to payment of rent and arrears and to observing the terms of the tenancy. In July 2007, Wandsworth made an application referring to ‘a number of serious further incidents of anti-social behaviour’ and asked the court to fix a date for possession. The council requested that the application be determined without a hearing, but noted that Mr Whibley opposed it. Mr Whibley’s solicitors wrote promptly to the court asking for a hearing of the council’s application. A district judge directed a 30-minute hearing which, if the making of a final order was opposed, was to be a directions hearing. By the time of that hearing Mr Whibley’s defence was that he had been dispossessed by undesirables, who were responsible for the nuisance. At the hearing, Wandsworth sought to rely on the nuisance claim ‘provided it could be determined without live evidence’. District Judge Gittens declined to do this and gave directions for a hearing on the first open day after six weeks with a time allocation of a day. Wandsworth appealed. HHJ Hallon dismissed Wandsworth’s appeal. Wandsworth’s second appeal to the Court of Appeal was also dismissed.

 

 

In possession proceedings HHJ Sitch found that the defendant, an assured tenant, had been responsible for serious damage to a shared kitchen, including ripping units away from the wall and smashing base units with a hammer. He found that these incidents ‘constituted serious breaches of the relevant tenancy agreement’ and that the defendant was ‘in effect accusing the housing officers of lying and trying to ‘frame’ her’. In those circumstances, it was ‘difficult to see how any relationship can continue’ and, as a result, he found it reasonable to make an outright order for possession. Subsequently, the defendant made an application to HHJ Zucker QC to suspend the order. She offered to pay £150 towards the damage to the kitchen. HHJ Zucker, finding that it ‘was one incident’, granted her application, suspending the possession order on terms that she cause no damage to the property and pay £150.

 

The bank took mortgage possession proceedings against a number of defendants. The trial was listed in June 2007. Although Ms Pereira knew about the trial and requested an adjournment, she did not attend. HHJ Milligan made orders for possession, gave a money judgment and ordered (in the light of findings of fraud) that the original sale and transfer of the property to her be rescinded. Those orders were made in her absence. In July 2009, she made an application to set aside parts of the order. HHJ Ellis rejected that application under CPR 39.3. He found that she had failed to act promptly on discovering judgment had been given, and that she did not have a good reason for not having attended the hearing. He also considered that the third requirement (a reasonable prospect of success at a retrial) presented her with difficulties. She appealed.

 

Mr Binnie had a long lease of a flat with about 94 years left to run. Forcelux was the landlord. Mr Binnie fell into arrears with payment of ground rent and charges. In November 2006, Forcelux obtained a default judgment against him for £893 plus costs. No payment was made by Mr Binnie following that judgment. Forcelux then served a Law of Property Act 1925 s146 notice. There was no response to the notice. In July 2007, Forcelux commenced proceedings for possession. By that time, Forcelux had received no payment from Mr Binnie for over two years and had heard nothing from him for 12 months. The claim form gave the address for Mr Binnie as the address of the flat. A hearing date was fixed, under CPR 55.5, for 11 September 2007. The court attempted to serve the proceedings by post but the envelope was returned marked ‘Gone away’. This was because, for some time, Mr Binnie had not been living in the flat and did not pick up any documents relating to this case. He was, in fact, then living with his girlfriend in another flat in the same building. Mr Binnie did not attend the hearing because he had no knowledge of the proceedings. The claimant’s witness statement set out the history of arrears and the default judgment and exhibited photographs which showed that the flat had been boarded up and appeared to be unoccupied. District Judge Hudson made a possession order on the basis of the material before him. Mr Binnie first became aware that a possession order had been made on 22 October 2007 when his girlfriend saw two men who were attending at the flat to take possession on behalf of Forcelux. On 10 December 2007, Mr Binnie or his solicitors sent a cheque to Forcelux’s solicitors for the outstanding amount. The cheque was subsequently returned in early January 2008. Mr Binnie applied to set aside the possession order under CPR 39.3(3). On 23 July 2008, District Judge Hudson made an order setting aside the order for possession and at the same time granted relief from forfeiture. HHJ Hampton dismissed an appeal. Forcelux appealed to the Court of Appeal.

 

In county court possession proceedings, the landlords obtained an order for possession in 14 days and a money judgment. On the fourteenth day, the tenant paid all the money due into court. The following day, a warrant for possession was issued. The tenant’s solicitors told the landlords’ solicitors that they would issue an application to set aside the possession order and to suspend the warrant the next day. However, the warrant was executed and the locks were changed before the application was issued. Later in the day that the locks had been changed, a county court judge heard the tenant’s application and set aside the judgment and the warrant. The landlords appealed.

 

Mr Findlay was a secure tenant receiving housing benefit. When this was stopped for a period, his rent account went into arrears. Hackney took possession proceedings. Although Hackney wrote to Mr Findlay stating that there would be a hearing on 7 May 2009, he claimed that he did not receive any formal document from the court summoning him to a hearing. Accordingly, he did not consider that he was bound to attend. District Judge Manners found that there were arrears of £1,221 and made an outright possession order. Mr Findlay was subsequently evicted. He applied to set aside the possession order. District Judge Armon-Jones allowed that application on the basis that District Judge Manners had not been told that by the time of the hearing on 7 May 2009 housing benefit had been reinstated. Hackney appealed. HHJ Birtles dismissed that appeal. Hackney appealed to the Court of Appeal.

 

Landlords’ solicitors issued proceedings against an assured shorthold tenant, claiming arrears of rent. They wrote to the court enclosing the summons in triplicate, asking for a sealed copy to be returned to them. The tenant did not appear at the hearing and a forthwith possession order was made. He then applied to set aside the order, claiming that he had not received the summons. The application was dismissed. HHJ Krikler stated that it was ‘assumed that if service of court proceedings is the court’s job then they will have served the relevant documents to the parties involved’.

 

A possession order was made against a secure tenant under Housing Act 1985 Sch 2 Ground 8 (repossession of temporary accommodation where the tenant’s original home is available again after improvement work). After a long delay, the tenant applied to set the order aside, presumably under CCR Order 37 r2, on the basis that he had not been present in court when the possession order was made. The application was dismissed and the order for possession executed. The council prepared to re-let.

 

Ms McGrath was a secure tenant from 1990. As a result of a stock transfer in 1999 she became an assured tenant. On 18 June 2003 she attended her landlord’s housing office and was interviewed regarding a transfer. She lost her temper and assaulted a female allocations officer. She pulled her hair and punched her. The allocations officer fell to the floor. Ms McGrath pleaded guilty to common assault in the magistrates’ court and was fined £100. CCHT issued a claim for possession, relying on that one incident, and sought an injunction. The case was listed for hearing on 23 July. Ms McGrath arrived at 10.00 am as the case was listed for 10.30 am but was informed that the hearing had been moved to the afternoon. She understood that she should return about 4.00 pm. CCHT had been told the day before that the case was listed for 3.00 pm. The case was heard without Ms McGrath being present and an order for possession was made to take effect by 25 July. Ms McGrath came back to court later in the afternoon, after the case had been dealt with. A district judge called Ms McGrath into her chambers with CCHT’s housing officer and listened to Ms McGrath but confirmed that the order stood. On 24 July, Ms McGrath applied to vary the order, but was sent a letter by the court saying that there was no date for her eviction and she should come back when she had notice from the bailiffs. On or about 9 August she received a bailiff’s notice that she was to be evicted on 23 September. CCHT were unhappy with this date and requested an earlier date. The court issued a new notice of eviction bringing the eviction forward to 22 August. The notice had a hand-written note, stating that the earlier date was in error and the new date was correct. CCHT wrote to Ms McGrath on 14 August, stating that her eviction would occur on 22 August 2003 and claiming she had breached the injunction. The letter did not advise her of her rights to stay the process. Ms McGrath became aware of the new date for her eviction on 15 August. She approached solicitors the following week but none could see her before the eviction date. She was evicted on 22 August and applied to re-enter that day. HHJ Cotran heard her application on 26 August. He set aside the possession order under CPR 39.3 and held that there was oppression in the execution of the warrant, mainly because advancing the date of eviction by a month meant that Ms McGrath was unable to obtain legal advice in order to protect her position. CCHT appealed.

 

Ms Gurbuz was a secure tenant. Lewisham sought possession against her on the basis that she had ceased to occupy as her residence the property let by them. She disputed this allegation. On the afternoon of the day before the trial, the court switched the hearing of the case from Woolwich County Court to Mayor’s and City County Court. The court did not inform Ms Gurbuz or the litigation friend who was acting for her of the change. The council did deliver a letter to Ms Gurbuz notifying her of the change of court but she did not receive it until 8 pm. She was unable to speak to her litigation friend and did not know what to do. In the morning she went to his office, while he went to Woolwich County Court. When he learnt of the transfer of the case, he telephoned Mayor’s and City County Court to say that he was making his way to that court. However, the judge proceeded with the hearing and made an order for possession. Ms Gurbuz applied to set aside the possession order (CPR 39.3(5)). HHJ Gibson refused her application. He considered that there was a triable issue but declined to determine whether there was a reasonable prospect of success because witness statements dealing with this issue were not attached to the defendant’s application

 

Camden issued possession proceedings against a secure tenant in July 2004 based on arrears of £540.78, which related entirely to non-payment of water and gas charges. The defendant refused to pay because he had found cheaper providers. The defendant did not attend the hearing and Camden obtained an outright possession order. Later, the order was varied to a suspended order. The defendant breached the suspended order. He was evicted in March 2005. A certificate of incapacity was obtained. It concluded that the defendant had had a mental disorder since April 2003. The Official Solicitor was instructed on his behalf. He applied to set aside the possession orders and for re-entry for the defendant on the basis that the orders were without effect as the defendant had no litigation friend when they were made (CPR 21.3(4)). Documentation showed that, from at least October 2004, Camden was concerned that the defendant had under-lying mental health problems. He had been banned from writing more than one letter per week to the council. There were records of phone calls which he had made which were not rational. Records also showed that the police and neighbours considered that he had mental health problems

 

Mr Hall was a secure tenant. He fell into rent arrears. Harlow obtained a suspended possession order in Form N28 which provided that he ‘give possession … on or before 9 February 2005’ and pay arrears of rent and costs totalling £1,919. The order also stated that the order was not to be enforced so long as Mr Hall made payments of £10 per week in addition to the rent. The first payment was to be made by 9 February 2005. He did not make the first payment and on 10 February 2005 he was made bankrupt. On 28 May 2005 Mr Hall applied to discharge the possession order, arguing that the rent arrears were a debt provable in his bankruptcy and that the order for possession was precluded by Insolvency Act 1986 s285(3)(a) because it was a remedy against the property of a bankrupt. That application was dismissed by a district judge and, on appeal, by a circuit judge.

 

Ms Sharples was an assured tenant. Her landlord sought possession on the ground of rent arrears. Before the hearing of the claim, Ms Sharples was made bankrupt. A district judge refused to order payment of the rent arrears since they were provable in the bankruptcy, but he rejected Ms Sharples’ argument that he was precluded from making a possession order by Insolvency Act 1986 s285(3)(a), which provides that after the making of a bankruptcy order no creditor should ‘have any remedy against the property … of the bankrupt in respect of that debt’. Ms Sharples’ appeal to HHJ Tetlow was dismissed. She brought a second appeal to the Court of Appeal.

Mr Bolter was the owner of three properties in Luton. All were let under assured shorthold tenancies. In 2013, Mr Bolter was made bankrupt. In August 2014, Mr Garwood – Mr Bolter’s trustee in bankruptcy – made an application for an order for sale of the three properties. It subsequently transpired that one of those properties had been let to a tenant (Mr Doherty) before Mr Bolter had become bankrupt. It followed that this tenancy was binding on Mr Garwood. On 24 March 2015, Mr Garwood served Mr Doherty with a section 21 notice. On 6 July 2015, after a number of adjournments, Mr Garwood’s application for an order for sale came back before the court. District Judge McKinnell refused to make an order for sale with vacant possession of the property as Mr Doherty’s tenancy had not been determined. Mr Garwood appealed.

 

Bristol and West were mortgagees of farmland. After lengthy possession proceedings, HHJ Harris QC ordered Mr Tomkins to remove 60 head of cattle from the farmland. He refused to do this or hand over the necessary documentation or ‘passports’ which would enable their sale. Without the passports, the only option on the removal of the cattle was for their slaughter, under licence. The judge made a further order committing Mr Tomkins to prison for 28 days for contempt of court unless he removed the cattle by a specified date. Mr Tomkins appealed.

Cardiff obtained a suspended possession order against Mr Lee, a secure tenant, based upon allegations of anti-social behaviour. After further allegations, it then sought to enforce the order by obtaining a warrant. No application was made for permission to issue a warrant. Mr Lee applied to suspend the warrant. District Judge Scannell dismissed the application to suspend. She found that Mr Lee had breached his tenancy and that the warrant had been appropriately issued under CPR 83.26. Mr Lee appealed. HHJ Bidder QC dismissed the appeal. He held that although the landlord required the court’s permission before a warrant for possession could be requested where ‘under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled’ (CPR 83.2(3)(e)), the issue of the warrant was voidable and not void. Mr Lee made a second appeal to the Court of Appeal.

She continued,

However, in this case, the failure to do so was a procedural defect which the court was empowered to cure under CPR r.3.10 by dispensing with the need for a prior permission application and proceeding to validate the warrant where the circumstances justified that course. The issue of the warrant was not invalid unless the court so ordered. Arden LJ concluded:

 

The claimants obtained a possession order. They attempted to execute a warrant of possession but the bailiffs did not obtain possession. A further copy of the possession order, now with a penal notice attached, was served. The defendants remained in possession and, as a result, the claimants applied for a committal order. The judge found that the defendants had been in flagrant breach of the terms of the possession order, had under-stood the penal notice and by their conduct had indicated their intention not to leave at any cost. A suspended committal order for 28 days was made.

 

The defendant was a secure tenant. In 1986 the council obtained judgment for arrears of rent and a suspended possession order. Despite the order, arrears continued to accrue and warrants for possession were issued but stayed or suspended on the tenant’s applications. In April 1995 a further warrant was issued and the tenant was evicted.

 

Possession proceedings were brought against squatters. After the possession order was made, the original squatters moved out and a new squatter moved in. The registrar (now district judge) directed the bailiffs not to execute the warrant and to wait until new proceedings were issued.

 

The trustee in bankruptcy obtained a possession order in respect of a property owned by the defendant and his mother. They appealed unsuccessfully. After the defendant’s mother died, the trustee in bankruptcy sought to enforce the order. The defendant refused to comply. He left the property, but occupied the roof. The possession order was amended to include a penal notice, and, when the defendant remained on the roof, he was committed for contempt of court, and sentenced to an immediate term of six months’ imprisonment. He appealed.

 

Mr Bell was the trustee in bankruptcy for Mr and Mrs Tuohy. In July 2001 he obtained an order for the sale of their matrimonial home, with possession to be given by 11 October 2001. He obtained a warrant for possession in August 2001 and the bailiff tried to execute it on 15 October 2001 but Mr and Mrs Tuohy refused to leave. Mr Bell applied for them to be committed to prison. The application was heard on 22 October 2001. By that time Mrs Tuohy had left. The hearing was adjourned to 5 November 2001 to enable Mr Tuohy to obtain legal representation. At the adjourned hearing, Mr Tuohy was committed to prison for seven days because he had failed to comply with the possession order, had impeded the bailiff, and had told the judge that he had no intention of complying with the possession order. The committal was made despite the lack of a penal notice on the possession order. Mr Tuohy appealed unsuccessfully.

 

The claimant was the owner of an empty property formerly used as an old people’s home. The property was squatted in 2001 by persons unknown. The claimant obtained a possession order under RSC Order 113 (summary proceedings for possession of land) on 24 May 2001. A warrant for possession was issued on 1 June 2001. The warrant was never executed because the squatters vacated the property before execution. The claimant obtained vacant possession and secured the property. The property was squatted again in February 2002. It was agreed that this group of squatters had no connection with the previous squatters. The claimant sought to execute the writ for possession. One of the squatters applied to set aside the writ for possession. District Judge Exton dismissed his application and extended the writ for possession to 1 June 2003, holding that R v Wandsworth County Court ex p Wandsworth LBC (R v Wandsworth County Court ex p Wandsworth LBC) was authority for the proposition that the bailiff was entitled to evict anyone on the premises even though that person was not a party to the proceedings. She decided that the fact that the claimant had obtained vacant possession of the property did not curtail its right to use the writ.

In May 2005, Defence Estates, acting on behalf of the Secretary of State for Defence, granted Squadron Leader Nicholas a licence of a house. Mrs Nicholas, his then wife, moved into the house with him. Some time before April 2008, the marriage broke down and Squadron Leader Nicholas moved out. On 22 May 2008, Defence Estates gave notice requiring Mrs Nicholas to vacate the property by 24 August 2008. In later possession proceedings, Burton J made a possession order ([2013] EWHC 2945 (Ch), October 2013 Legal Action 32). Mrs Nicholas appealed. The Court of Appeal dismissed her appeal (Secretary of State for Defence v Nicholas).

 

Mr Partridge was an assured shorthold tenant. His landlord, Mr Gupta, served a Housing Act 1988 s21 notice. After a contested hearing, District Judge Sethi made a possession order requiring Mr Partridge to give up possession on or before 11 March 2016. Permission to appeal was refused. In March 2016, Mr Gupta’s representatives issued an application in the County Court at Watford seeking permission to transfer the case to the High Court for enforcement purposes pursuant to County Courts Act 1984 s42(2). HHJ Harris ordered the transfer of the proceedings to the High Court. Before that hearing, Mr Gupta’s representatives sent Mr Partridge a letter stating, among other things:

 

After obtaining an order for possession, landowners sought an injunction against the Sheriff for Greater London to compel him to evict trespassers ‘forthwith’.

 

In 1983 the plaintiffs obtained orders for possession against a number of named defendant trespassers. Executing the order, the sheriff gained possession of the premises. Over the next two years, groups of trespassers, including some of the original defendants, returned to the site. The landowners applied for a writ of restitution.

The defendants were secure tenants. In 2009, a possession order was made when rent arrears were £1,058. Enforcement was stayed on terms as to payment by instalments. The terms were breached and successive applications for warrants resulted in further stays which were again repeatedly breached. The latest stay was granted in September 2014 when the arrears were £1,669. The defendants did not comply with the terms of the stay. The council applied to transfer the proceedings to the High Court so that it could utilise the enforcement procedures of that court which, as a result of a limited number of county court bailiffs in Birmingham, were far quicker. By the date of the hearing of that application, the arrears had reached £2,382.50. The tenants cross-applied for permission to bring a counterclaim for damages for disrepair.

 

 

The claimant was the head lessee of a public house. It entered into a caretaking agreement with Mr Daniel. Ms Daly was his partner. In February 2008, the claimant gave notice terminating the agreement with effect from 4 April 2008. A possession claim was issued in Lambeth County Court. Ms Daly notified the court that she would be late for the hearing. Notwithstanding this, HHJ Gibson heard the case in the absence of the defendants and made a forthwith possession order. When she attended, Ms Daly handed the judge a defence and a lease purportedly granted by the claimant. The judge declined to vary his order. A warrant was issued the same day; it was due to be executed on 18 June. Ms Daly lodged an appellant’s notice and requested a stay. Teare J granted a stay. The claimant applied to discharge the stay. It argued that Housing Act 1980 s89 restricted the power to grant a stay to 14 days or to six weeks if exceptional hardship would be caused. Initially, Teare J set aside his order granting a stay, but then granted the defendants’ application to set aside that order, thus restoring the stay ([2008] EWHC 1688 (QB); September 2008 Legal Action 24. He stated that parliament could not have intended appellants ‘to be denied the fruits of a (potentially) successful appeal’. The claimant appealed.

 

The defendant travellers moved on to a site owned by the claimants without permission. They were accordingly trespassers. A possession order was subsequently made. The defendants’ application to postpone the date for possession was refused. They appealed, contending that, although previous authorities stated that trespassers could not be given time to vacate by the court unless the land owner agreed (see McPhail v Persons Unknown (McPhail v Persons Unknown)), different considerations applied under Housing Act 1980 s89. The application was dismissed and the defendants appealed.

 

In 1992 the council obtained a suspended possession order. At the time the tenant’s arrears were £3,500. By November 1994 the arrears had increased by £1,000 and the council obtained a warrant. On the tenant’s application to stay the warrant, she argued that the figures claimed in the rent account were wrong and that she was owed approximately £1,000 in respect of housing benefit. After a short adjournment, during which it was not possible to clarify the position, her application was dismissed.

 

Mrs JL was married to an army officer. He was violent to her and abused one of their daughters. In July 1989, he resigned from the army. Although the army no longer had any duty to house Mrs JL, on compassionate grounds, because of her husband’s misconduct towards her and the family, she was granted a licence of accommodation in Leeds where her children attended a boarding school. Even if there had been a tenancy, there could be no assured tenancy as a result of Housing Act 1988 Sch 1 para 11. In 2005, a notice to quit was served. By this time Mrs JL suffered ill-health, was registered disabled and had to use a wheelchair. She defended possession proceedings relying on Article 8. Collins J made a possession order in May 2009 (Defence Estates v JL [2009] EWHC 1049 (Admin); August 2009 Legal Action 33).

 

 

In proceedings against a secure tenant based on rent arrears, the landlord obtained a suspended possession order. Later a warrant for possession was issued. The tenant applied to suspend the warrant (Housing Act 1985 s85). At the hearing of the application, the landlord sought to adduce evidence of nuisance caused by the tenant. The parties agreed that the issue of whether such evidence could be admitted should be heard as a preliminary point. District Judge Oldham ruled that matters other than rent could not be raised on the application to suspend the warrant for possession. HHJ Bartfield upheld that ruling on appeal.

 

Mrs Hurley was a secure tenant from 1975. In 1997, after a long history of racial and other abuse and extensive intimidation, a recorder made a suspended possession order. In 2002, after there had been 97 instances of contempt of court by Mr Hurley, the council applied to have the suspension lifted. Mrs Hurley, and other members of the family, gave evidence denying all the allegations. However, a circuit judge found that they had all lied and that the allegations against Mr Hurley were proved. He also found that Mrs Hurley had no part in the matters proved and did not condone or support them. The judge further suspended the possession order on terms that Mr Hurley should move out of the premises by 9 April 2002 and would not return and that Mrs Hurley would comply with provisions in the tenancy agreement dealing with nuisance and annoyance to others. Mr Hurley remained in the house for about a week after the date by which he was ordered to depart and was imprisoned for a short period for contempt for breaching non-molestation orders. The council appealed against the further suspension. As the circuit judge had given no reasons for not lifting the suspension, Mrs Hurley accepted that the judge’s decision could not be sustained.

 

The defendant charity operated a nursery for mentally handicapped child-ren. The council sought possession of the site. The parties agreed a consent order that the charity would give up possession in return for the grant of an alternative site. However, the council could not make the new site fit and as a result the charity refused to give up possession of the existing site. A deputy master stayed execution of Hackney’s writ of possession and the council appealed.

 

In county court possession proceedings based on rent arrears, the court made an order for possession which was suspended for seven days and thereafter for so long as the tenant paid her rent. The tenant later failed to pay rent and the council accordingly obtained a warrant for possession. Two days before the warrant was due to be executed, the tenant issued an application to suspend the warrant. The county court refused to grant the application on the ground that there was no jurisdiction to suspend the warrant further.

 

In February 1997 the claimant housing trust obtained a suspended possession order on the ground of rent arrears against the second defendant, who was a secure tenant. She failed to comply with the terms of suspension and a warrant for possession was obtained. The second defendant applied to stay the warrant or to suspend the possession order further. The court was satisfied that further rent arrears had accrued and that she had, on five occasions, allowed the premises to be used for drug use. The judge ruled that the arrears of rent were insufficient to justify immediate possession. Furthermore, although all five allegations of drug use were serious and amounted to a nuisance, and would have been grounds for making a possession order, there were two mitigating factors: (1) the judge was not satisfied that the second defendant had been involved personally in drug dealing; and (2) nothing recent had been proved. He also took into account the fact that the second defendant had a seven-month-old child, and, having regard to the overall requirement of reasonableness and Article 8, further suspended the order. The claimant appealed, submitting that immediate possession should have been ordered.

Proudman J refused an application for a further stay of the execution of an order for possession pending appeal. The first stay application had been dealt with and dismissed at an earlier hearing. The reasoning in Thevarajah v Riordan [2015] UKSC 78, [2016] 1 WLR 76 applied equally to stay applications as it did to applications for relief from sanctions. Accordingly, in order for an applicant to make repeated applications for a stay of execution, he had to demonstrate either a material change of circumstances since the original decision, or that there had been a serious mistake in that decision. In this case, neither existed.

 

A former tenant applied to set aside a warrant on the basis that the circumstances of its execution were oppressive. He alleged that, shortly before the application for the warrant was made, he took a lump sum of £400 to the council and a housing officer received it with the words ‘that will do for now’. He took no further steps and made no further payment because he thought that the council would be in touch with him. HHJ White found it ‘difficult to believe’ in all the circumstances that the tenant had genuinely formed the belief that he had simply to wait for the council to contact him. He preferred the evidence of the housing officer and rejected the allegation of ‘oppressive’ conduct.

 

The defendant was an assured tenant. He was in receipt of income support and housing benefit. Housing benefit was paid direct to Circle 33. The tenancy agreement included an express term that Circle 33 should make every effort to make direct contact with the housing benefit department before taking enforcement action in respect of rent arrears. After some time, housing benefit payments ceased. Circle 33 sought possession on the ground of arrears of £1,739 at the date of the hearing. Mr Ellis did not attend the hearing and an outright order was made. Mr Ellis was evicted. After eviction, he made inquiries and was given a letter from the local social security office, confirming that he had been in receipt of income support during the relevant periods. The housing benefit department reassessed his claim and confirmed that he had in fact been entitled to benefits at all material times. His rent account was accordingly credited with the benefit payments, leaving arrears of £203. HHJ Ansell refused Mr Ellis’s application to set aside the warrant and to be reinstated. Holland J, on appeal, found that execution of the warrant was oppressive. He allowed the defendant’s appeal, quashed the eviction and ordered that re-entry be permitted.

 

 

The defendant was a secure tenant. The council obtained a suspended possession order in 1990 for non-payment of rent. In 1993 it applied ex parte for a warrant following breach of the order. The warrant was executed. After eviction in March 1993 the defendant applied for the warrant to be suspended and the county court judge granted her application. She was readmitted to the property.

 

The defendant was a secure tenant. He had a poor rent payment record and the council obtained a warrant for possession, which was due to be executed on 30 September 1999. On 29 September 1999 the defendant went to the county court offices, where he informed a member of the court staff that he was due to be evicted the next day. He did not know the case number and did not inform the member of staff that there were in fact three sets of proceedings between him and the council. Using the court computer, the officer saw one of the actions but not the present case. She said that there was no warrant and told the defendant to contact the council. As a result he left the court. The warrant for possession was executed the following morning. The defendant applied to set aside execution of the warrant on the ground of oppression having regard to Hammersmith and Fulham LBC v Hill (Hammersmith and Fulham LBC v Hill). The judge granted the application and the council appealed, contending that oppression had to be caused by the landlord and not by the court.

 

Possession was granted against a secure tenant and the warrant was due to be executed on 13 May 1993. On 12 May the tenant’s solicitor attended court to make an emergency application to stay the warrant, relying on Housing Act 1985 s85. The court staff said that the judge had finished his list for the day and it was too late for the application to be heard. The judge, who was in the court building, was not informed. When he heard the application on 20 May, the warrant had been executed and he declined to make an order suspending it.

 

Ms Moisejevs was a secure tenant. In August 1999 the court made a suspended possession order requiring her to pay arrears of rent and costs by instalments. She fell further into arrears, and in March 2000 the landlord applied to the court for a warrant for possession. Notice of issue of the warrant was sent by the bailiff to Ms Moisejevs. She contacted the Citizens’ Advice Bureau, which prepared, but never issued, an application to suspend the warrant under Housing Act 1985 s85(2). The landlord then wrote to her, stating that the outstanding arrears stood at £1,280.64 together with £80 court costs, and advised that eviction could be cancelled by payment of the debt. On 20 March she paid £876 off the arrears, and a few days later she paid the court costs. After learning that there would be a housing benefit shortfall of £433.64 the landlord proceeded with execution of the warrant and Ms Moisejevs was evicted. She applied to set aside the warrant but her application was refused by HHJ McNaught. Ms Moisejevs appealed, contending that she had genuinely believed, albeit not as the result of anything said or done by the landlord, that she had done all that she needed to do in order to avoid eviction. She claimed that it was no longer necessary, as a prerequisite to the exercise by the court of its jurisdiction to set aside a warrant for possession after its execution, to identify someone who acted oppressively towards the tenant, provided that it could be established that the end result was from the tenant’s viewpoint ‘manifestly unfair’. She argued that the warrant should be set aside under the court’s inherent jurisdiction and that natural justice, or alternatively the practice of the High Court, as imported by County Courts Act 1984 s76, required that a tenant should in all cases be given notice of a request for the issue of a warrant.

 

The defendant was a secure tenant. Following breach of a suspended possession order, the council was granted a warrant for possession. The council wrote to the defendant giving him the date of eviction (28 October 1999). The letter stated that the only way to stop eviction would be to pay all the arrears in full. The defendant went to see his housing officer, who told him the same thing but said that he could take legal advice. The defendant tried but failed to secure such advice and went to the court office. His file could not be found and he was told to await receipt of a letter from the court bailiff, which would contain both the eviction date and details of how to stop the eviction. The bailiff’s letter was dated 22 October 1999 but was not posted until 23 October 1999 by second-class post and arrived on 28 October 1999 as the eviction was taking place. HHJ Cox dismissed an application to set aside execution.

 

 

A former secure tenant sought to set aside an executed warrant for possession. His application was refused by a district judge and by a circuit judge on appeal. The applicant had been the subject of a suspended possession order for arrears of rent but failed to comply with its terms during a short period while he was held on remand in custody. He notified the council about his detention and whereabouts. The council, without notice to him, applied ex parte for, obtained, and executed the warrant during his absence.

 

The defendant was a secure tenant. Southwark were granted a possession order in October 1991, suspended on terms that Ms Sarfo pay the monthly rent plus £2 towards arrears. She failed to maintain payments and Southwark applied for a warrant. In July 1994 the warrant was suspended on terms that she continue paying the rent plus £2.20 towards arrears which then stood at £5,275. In July 1995 payments to the rent account stopped. In August 1995 Ms Sarfo applied for income support and housing benefit. In September and October 1995 she made two further applications for housing benefit. All three application forms were lost by the council. In December 1995, the council applied for a warrant, informing her of the action it was taking. In January 1996, Southwark sent her a letter stating that the council was arranging for bailiffs to evict her. Later she received notice that the eviction would take place on 6 March 1996. On 20 February 1996, Ms Sarfo was informed that all the application forms for income support and housing benefit had been lost and she duly made a further application. On the eve of the eviction, Southwark’s housing officer rang to enquire whether she had applied to the court to stop the eviction. She confirmed that she had not made any such application and was given the number of the court offices which she rang. The court rang Southwark to ask whether it would agree to a stay. Southwark refused. The court rang Ms Sarfo to inform her that the bailiffs would be coming at 9 am the following morning and that she should consequently pack up and be ready to leave. On 6 March 1996, she was evicted. On 26 January 1998, Ms Sarfo made an application to set aside the warrant of eviction on the ground that the authority had acted oppressively. Recorder Jolles dismissed her application.

 

In 1997 the council obtained a suspended possession order against Mr St Brice, who was a secure tenant with rent arrears of £3,700. When the arrears increased to over £4,000 the council, using Form N325 and without notice to Mr St Brice, obtained a warrant for eviction. In December 2000 the court and the council separately wrote to the defendant to give him notice of the eviction date and explaining what steps he could take. On 31 January 2001 he was evicted. He then applied to set aside the warrant contending that the procedure enabling the council to obtain a warrant on an application made without notice and without either a hearing or opportunity to make written representations was in breach of his ECHR rights under Articles 8 and 6(1). He argued that the issue of the warrant should have been a judicial act, as opposed to an administrative act. HHJ Cox dismissed the application but gave permission to appeal direct to the Court of Appeal (CPR 52.14).

 

In October 1994 the council obtained a suspended possession order and a money judgment for arrears of rent of over £600. By October 1996 the terms of the order had not been complied with and arrears had reached over £1,100. The council applied for and obtained a warrant scheduled for execution on 3 December. On 2 December, galvanised into action by the impending eviction, the former tenant sought advice and then tried to lodge an application to stay or suspend the warrant. He was delayed by traffic and arrived to find the court shut. The following morning the warrant was executed at 9 am but, as soon as the court office opened at 10 am, he lodged his application. The judge held that he had no jurisdiction to grant a stay or further suspension as the warrant had been executed.

 

 

See Housing Law Casebook 4th edition, I6.18

 

See Housing Law Casebook 4th edition, I6.19