Housing law

By Andrew Dymond, barrister, Arden Chambers, London

OppressionThree recent cases before the Court of Appeal have re-visited the circumstances in which a tenant may successfully claim to have suffered oppression.

It is well established that where a warrant for possession has been executed against a secure tenant, the warrant may be set aside or suspended under s.85(2) of the Housing Act 1985 if the tenant can establish that there has been abuse of process or oppression in the execution of the warrant (see Leicester CC v Aldwinckle (1991) 24 HLR 40, CA, and Hammersmith and Fulham LBC v Hill (1994) 27 HLR 368).In Hammersmith & Fulham LBC v Lemeh ((2000) 33 HLR forthcoming) the tenant claimed that the conduct of court staff, who wrongly advised him that no warrant was outstanding when he attended the court office, amounted to oppression.The Court of Appeal held that a finding of oppression was not limited to situations in which the landlord is responsible for the oppressive conduct, but 'ought to include any state of affairs which is oppressive to the tenant', such as where a member of the court staff provides misleading information.

In Lambeth LBC v Hughes ((2000) 33 HLR forthcoming), the tenant was served with a notice of eviction advising him that the only method by which eviction could be avoided was payment of the entire outstanding arrears, but did not refer to his rights under s.85(2) to seek a stay or suspension.

In a similar manner to Lemeh, the court office advised him that no warrant had been issued and he should await receipt of a letter from the bailiff which would explain his position and his options.The Court of Appeal found oppression in the execution of the warrant as the tenant had been deprived of an opportunity to exercise his rights under s.85(2) by the conduct of both the court and the authority.Whilst the decisions in Lemeh and Hughes extend the circumstances in which oppression may be established beyond merely oppressive conduct by a landlord, in Jephson Homes Housing Association v Moisejevs & Another (unreported,1 November, 2000) the Court of Appeal has refused to extend them further.

The tenant argued that, following Lemeh and Hughes, it was not necessary to identify oppressive conduct by an individual; it was sufficient to establish oppression if the end result was manifestly unfair to the tenant, as this was an oppressive 'state of affairs' within Lemeh.The Court of Appeal dismissed this argument and held that, whilst each case turns on its facts and the circumstances under which oppression may be made out are not closed, 'there cannot be oppression without the unfair use of court procedures; and something more than the mere use of the eviction process - some action on someone's part which is open to criticism - will be required before the court's procedures can be said to have been unfairly used'.Simon Brown LJ went further, holding that the phrase 'any state of affairs which is oppressive to the tenant' was to be interpreted as meaning only that where an individual's conduct is not itself oppressive - for example where an individual unintentionally provides misleading information - it may nevertheless be oppressive in its effects on a tenant.

Any broader interpretation which implied an absence of fault on some person's behalf was wrong.

These three decisions, notwithstanding Jephson, substantially extend the circumstances in which oppression may be established.

Moreover, in the light of the Human Rights Act 1998 it can only be a matter of time before the County Court's procedure, whereby tenants are not informed that a warrant has been applied for, is directly challenged.