Outright possession ...

or not?

District Judge Nic Madge sums up the tenant's prospects of avoiding an immediate possession orderIf the tenant has statutory security of tenure (for example, a secure tenancy under Housing Act 1985, an assured tenancy under Housing Act 1988 or a protected or statutory tenancy under Rent Act 1977), the court may have a wide discretion on what course to take, but this depends upon the ground for possession relied upon.

If it is a discretionary ground (for example, rent arrears under Housing Act 1985 schedule 2, ground 1) the court may adjourn, stay or suspend the execution of the order or postpone the date for possession for such period or periods as the court thinks fit (section 85 of the Housing Act 1985, section 9 of the Housing Act 1988 and section 100 of the Rent Act 1977).

Firstly, the court should ask: 'Is it reasonable to make any order for possession?' If it is not, the court may adjourn either generally or to a fixed date, perhaps on terms as to the repayment of arrears, or, in rare cases even dismiss the claim for possession.

If it is appropriate to make an order for possession, the court should ask a second question 'Is it reasonable to suspend the order? (Laimond Properties Ltd v Raeuchle (2001) 33 HLR 113, CA).Termination with easeThe effect of breach of a suspended possession order by a secure tenant is the immediate termination of the tenancy (Thompson v Elmbridge BC [1987] 1 WLR 1425, CA).

Such a breach is almost inevitable if the defendant is in receipt of income support or other state benefits because the benefits agency normally credit any weekly payment towards rent arrears quarterly in arrears.

The former tenant becomes a tolerated trespasser (Burrows v Brent LBC [1996] 1 WLR 1448, HL) and so loses the benefit of the landlord's repairing obligations (section 11 of the Landlord and Tenant Act 1985), the right to buy (section 118 of the Housing Act 1985) and rights to mutual exchanges (section 92 of the Housing Act 1985).

The tenant's spouse loses rights to the transfer of the tenancy under the Family Law Act 1996 and the tenant's spouse or other members of the family may lose the right to succeed to the tenancy on death (sections 87-90 of the Housing Act 1985).

These effects demonstrate the benefit to a tenant of persuading the court not to make a suspended possession order, but rather to adjourn generally on terms that the tenant pay current rent and a weekly or monthly sum towards the arrears.Anti-social behaviourThe Court of Appeal has adopted a tougher line in recent years to possession claims based upon anti-social behaviour.

The proper approach in cases involving 'a most serious breach' of the tenancy agreement is to make an outright order for possession in the absence of some exceptional circumstance (Bristol CC v Mousah (1997) 30 HLR 32, CA - serious drug dealing).

The fact that anti-social behaviour was caused by the tenant's children or other members of the family does not prevent the court from making an outright possession order (Kensington & Chelsea RLBC v Simmonds (1997) 29 HLR 507, CA).

Where there is an admitted breach of covenant and an intention to continue with the breach a landlord should only be refused possession in a 'very special case' (Sheffield CC v Green (1994) 26 HLR 349, CA).However, an outright possession order may not be appropriate where the anti-social behaviour was caused by a member of the tenant's family who has since left the premises, with the result that the chances of recurrence are reduced.

(Castle Vale Housing Action Trust v Gallagher (2001) 23 February, CA).Discretionless when it's mandatoryThere is no discretion to adjourn or suspend if a mandatory ground is proved.

For example, Housing Act 1988 schedule 2, ground 8, (two months' rent arrears, or eight weeks' arrears in the case of a weekly tenancy, at both the date when notice was served and at the date of the hearing) gives a landlord an automatic right to a possession order.

Judges are entitled to find that ground 8 is satisfied even if the arrears have been caused by housing benefit which is owed by the local authority (Marath v MacGillivray (1996) 28 HLR 484, CA where the local authority paid benefit after the hearing with the result that the arrears were reduced below the ground 8 threshold).

In practice, where tenants face claims for possession under ground 8, the only way to obtain time to pay rent arrears (or to sort out housing benefit) is to apply for an adjournment before evidence has been heard.

It is arguable that at that stage the court has an inherent jurisdiction to adjourn.

(R v A Circuit Judge, ex parte Wathen (1976) 33 P & CR 423, QBD; Birmingham Citizens Permanent BS v Caunt [1962] Ch 883; Bristol CC v Lovell [1998] 1 WLR 446, HL and Hoffman v Cueto-Corondo and Filipe, April 2000 Legal Action 32, Edmonton County Court.)If the landlord proves an automatic entitlement to a possession order - for example, by establishing a mandatory ground or where the tenant lacks security of tenure, the only issue is normally the date upon which possession is ordered to be given up.

This is the common scenario where a landlord of an assured shorthold tenant has served a valid Housing Act 1988 section 21 notice.

In these circumstances, the court's discretion as to the date when possession is to be given up is limited by section 89 of the Housing Act 1980.

That section provides that the maximum period of time that can be allowed before a possession order takes effect is 14 days, unless exceptional hardship would be caused, in which case the maximum period is six weeks.

There are no reported decisions on the meaning of 'exceptional hardship'.District Judge Nic Madge sits at West London County Court