Housing law

Conditions for possession orders - section 85

Under section 85 of the Housing Act 1985, the court has extensive powers to suspend or postpone possession orders made against secure tenants and to impose conditions.

If the tenant breaches a condition of the order, the tenancy comes to an end and the landlord is entitled to apply for a warrant of possession.

However, as long as the conditions are complied with, the tenancy continues.

In Manchester CC v Finn [2002] EWCA Civ 1998, the Court of Appeal considered the position where a suspended possession order is in force and the tenant is complying with the terms of the order but the landlord alleges that the tenant is guilty of conduct which, while not in breach of the terms of the order, would constitute a ground for possession under the 1985 Act.

Can the landlord apply under section 85 to vary the order to include additional conditions or to convert the order into an outright order, or does it have to commence fresh proceedings?

In Finn, the possession order was based on rent arrears and was suspended on payment of the current rent plus 2.60 per week.

The tenant complied with the order but on two occasions stolen goods were discovered in her house and she was convicted of handling.

The authority applied for an outright order to be substituted, or for the order to be suspended on an additional condition that the house was not used for illegal purposes.

The Court of Appeal (Lord Justice Ward and Lady Justice Arden) accepted the landlord's arguments and held that where a suspended possession order has been made but the tenant has not breached the conditions of the order, the county court has jurisdiction under section 85(2) to impose additional or different conditions, or to substitute an outright order.

This is a logical progression from Sheffield CC v Hopkins [2001] EWCA Civ 1023; [2002] HLR 12, in which the Court of Appeal held that in exercising its discretion to suspend or stay the execution of a possession order under section 85(2), the court is not restricted to consideration of facts connected to the ground for possession on which the possession order was made.

Hopkins has been criticised but in Finn, the Court of Appeal approved it and held that it was not per incuriam Raeuchle v Laimond Properties Ltd (2001) 33 HLR 113, CA.

Landlords will welcome the decision but passages in the judgment, which emphasise tenants' rights, must not be overlooked.

Reference was made to guidance given by Lord Woolf Chief Justice in Hopkins on the importance of affording tenants a proper opportunity to address the allegations made against them.

Finn provides no specific guidance on the procedure to be adopted at such applications but it is clear that the tenant must be given proper notice of allegations and be allowed sufficient time to prepare a response.

Other matters, in particular whether oral evidence is required from the landlord's witnesses, will doubtless depend on the circumstances of each case.

Presumably, a less rigorous procedure is appropriate where the landlord only wishes to have further conditions imposed rather than have the order converted into an outright order.

Likewise, where, as in Finn, the tenant has relevant convictions, further evidence may not be required from the landlord, whereas if its case is based on complaints from neighbours, one would expect oral evidence from the complainants if the evidence is disputed.

By Andrew Dymond, Arden Chambers, London