Housing law

By Andrew Dymond, barrister, Arden Chambers, London

Grounds for possessionPossession actions based on rent arrears commonly result in a suspended order, requiring payment of the current rent and periodic sums off the arrears.If the terms are breached, the landlord may request a warrant of possession but the tenant may apply to suspend its operation (under section 85 Housing Act 1985, if secure; section 9 of the Housing Act 1988, if assured).Applications to suspend are dealt with swiftly, the key issues usually being the tenant's proposals for payment and his explanation for the breach.One issue which has been unclear is whether the landlord may oppose the application on grounds which may be unconnected with the payment of rent, for example, because ofanti-social behaviour which has taken place after the possession order, or which the landlord chose not to rely on as a formal ground for possession to avoid a lengthy, contested hearing.

Two reported county court decisions reached diametrically opposed conclusions as to the relevance of such allegations - Islington London Borough Council v Reeves 1997 CL 2715 and Hammersmith and Fulham London Borough Council v Brown 2000 CL May 350.

A ruling from the Court of Appeal was needed.

In Sheffield CC v Hopkins [2001] EWCA Civ 1023, the Court of Appeal held that the fact that an order for possession is made on one ground does not prevent the court which deals with a subsequent suspension application from considering issues which do not fall within that ground.

However, it is not required always to allow the landlord to rely on other matters.The court gave guidance as to how judges should exercise their discretion whether to consider material which is not relevant to the ground on which the order was made.

The following factors are relevant: l The policy of the Housing Acts that eviction is dependent on the landlord proving a breach of the tenant's obligations, reasonableness and breach of any condition attached to a suspended order; l The principles of the Civil Procedure Rules 1998, in particular the need for applications to be dealt with in a summary and proportionate manner so that it may well not be possible to deal with wider issues in a suspension application; l The need for the tenant to have notice of the allegations; (d) Whether the landlord included the allegations in the claim for possession, even though the ground was not actually relied on; l Whether the allegations relate to events before the possession hearing; l The practicalities of dealing with contested issues of fact on a suspension hearing; and, l The fact that the tenant is at the mercy of the landlord and the responsibilities of public landlords to their other tenants.By including the fourth factor, the court approved a practice which will seem entirely novel to most housing practitioners.It held that it is appropriate for the landlord to notify the tenant that although certain conduct will not be relied on as a ground for possession, if an order is granted, it will ask the court to impose a condition restraining that conduct in the future.Formal evidence is not required but if the condition is in issue, material must be produced to the judge sufficient to justify its imposition.Given that failure to adopt this course counts against a landlord who seeks to raise such allegations at any subsequent suspension hearing, most landlords are now well advised to seek such conditions whenever appropriate.This may well impact on the listing of the first hearings for possession actions, which are commonly allocated a brief hearing.