Agreement over arrears created new tenancy

LAW REPORT 22 August 1995

Burrows v Brent London Borough Council; Court of Appeal (Lord Justice Butler-Sloss, Lord Justice Otton and Lord Justice Auld) 12 July 1995

Where a landlord, having obtained a final order for possession for non- payment of rent, then permitted the former tenant to remain in the premises on condition the tenant paid a sum equivalent to rent and towards arrears, the effect was to grant the tenant a new tenancy or a licence enjoying the same protection as under the terminated tenancy, and to require the landlord to obtain a further order of possession before the tenant could be evicted for subsequent non-payment of rent.

The Court of Appeal dismissed an appeal by the London Borough of Brent from the decision of Judge Finestein QC, sitting at Willesden County Court on 19 August 1994, who declared the plaintiff, Diane Sarah Elizabeth Burrows, to be a secure tenant of a flat owned by the council, pursuant to an agreement made between them on 5 February 1992, and granted her a mandatory injunction requiring the council to re-admit her to the flat following her purported eviction.

Bryan McGuire (Paul Barber, Brent) for the council; William Geldart (Daniel & Harris, Kilburn) for the plaintiff.

Lord Justice Auld said Brent, like many local authorities, as a matter of policy gave tenants, against whom a final possession order had been made, a last chance to remain if they entered into an agreement to pay a sum equivalent to rent and towards their arrears. The council apparently thought a final order had more impact than a suspended order in persuading the occupants of its housing to pay their rent. If so, that was only a matter of perception, because a council could execute a suspended order, of which a tenant was in breach, by the issue of a warrant, and without further order, just as it could in the case of a final order.

On 29 January 1992, the council obtained a 14-days' final order against the plaintiff for possession of her flat for non-payment of rent and an order for payment of arrears. She was unable to pay the arrears within 14 days but, on 5 February, the council entered into an agreement with her, under which she could continue to live in the flat so long as she paid a sum equivalent to rent and regular payments towards arrears. Had she complied with this agreement, it would have taken her over 14 years to pay off the arrears. But she failed to comply and the council issued a warrant to enforce its possession order.

The judge held that the plaintiff's original tenancy ended as a result of the possession order, but that, without either party having intended it, a new tenancy had been created by operation of law.

Brent appealed, arguing, inter alia, that the agreement was simply to suspend enforcement of the possession order on terms, and involved no intention to create a legal relationship or grant her exclusive occupation.

But his Lordship accepted the plaintiff's argument that the plain intention of the agreement was to permit her to remain in exclusive occupation of the property at a rent, and that it amounted to the grant of either a new lease or a licence to occupy the property. (It was not necessary to decide which, since either entitled her to security of tenure under section 82 of the Housing Act 1985.)

The council's policy thus produced the opposite of what it sought to achieve. Instead of achieving the same result as a suspended order of possession, the effect of obtaining a final order followed by such an agreement was that a former tenant acquired a new tenancy or a licence enjoying the same protection as under the terminated tenancy, requiring a further order of possession before they could be evicted for non-payment of rent.

In contrast, a suspended order remained suspended only for so long as the tenant complied with its terms. The tenant's failure to comply terminated the tenancy and entitled the landlord to execute the order merely by issuing a warrant for possession.

This could not be done in the case of a final order followed by an agreement which amounted to a new tenancy, since the basis for the issue of a warrant for possession ceased to exist following the grant of a new tenancy, and the warrant could only relate to the old, not the new, tenancy. The erroneous use of such a warrant in this case to evict the plaintiff was a breach of covenant for quiet enjoyment, trespass and an unlawful eviction in respect of her new tenancy.

Lord Justice Butler-Sloss and Lord Justice Otton concurred.

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
ebooks
ebooksA special investigation by Andy McSmith
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: Bookkeeper

Negotiable: Recruitment Genius: One of the world's leading suppliers and manuf...

Recruitment Genius: Multiple Apprentices Required

£6240 per annum: Recruitment Genius: Apprentices are required to join a privat...

Sauce Recruitment: HR Manager

£40000 per annum: Sauce Recruitment: This is an exciting opportunity for a HR...

Ashdown Group: Interim HR Manager - 3 Month FTC - Henley-on-Thames

£35000 - £40000 per annum: Ashdown Group: A well-established organisation oper...

Day In a Page

As in 1942, Germany must show restraint over Greece

As in 1942, Germany must show restraint over Greece

Mussolini tried to warn his ally of the danger of bringing the country to its knees. So should we, says Patrick Cockburn
Britain's widening poverty gap should be causing outrage at the start of the election campaign

The short stroll that should be our walk of shame

Courting the global elite has failed to benefit Britain, as the vast disparity in wealth on display in the capital shows
Homeless Veterans appeal: The rise of the working poor: when having a job cannot prevent poverty

Homeless Veterans appeal

The rise of the working poor: when having a job cannot prevent poverty
Prince Charles the saviour of the nation? A new book highlights concerns about how political he will be when he eventually becomes king

Prince Charles the saviour of the nation?

A new book highlights concerns about how political he will be when he eventually becomes king
How books can defeat Isis: Patrick Cockburn was able to update his agenda-setting 'The Rise of Islamic State' while under attack in Baghdad

How books can defeat Isis

Patrick Cockburn was able to update his agenda-setting 'The Rise of Islamic State' while under attack in Baghdad
Judith Hackitt: The myths of elf 'n' safety

Judith Hackitt: The myths of elf 'n' safety

She may be in charge of minimising our risks of injury, but the chair of the Health and Safety Executive still wants children to be able to hurt themselves
The open loathing between Barack Obama and Benjamin Netanyahu just got worse

The open loathing between Obama and Netanyahu just got worse

The Israeli PM's relationship with the Obama has always been chilly, but going over the President's head on Iran will do him no favours, says Rupert Cornwell
French chefs get 'le huff' as nation slips down global cuisine rankings

French chefs get 'le huff' as nation slips down global cuisine rankings

Fury at British best restaurants survey sees French magazine produce a rival list
Star choreographer Matthew Bourne gives young carers a chance to perform at Sadler's Wells

Young carers to make dance debut

What happened when superstar choreographer Matthew Bourne encouraged 27 teenage carers to think about themselves for once?
Design Council's 70th anniversary: Four of the most intriguing prototypes from Ones to Watch

Design Council's 70th anniversary

Four of the most intriguing prototypes from Ones to Watch
Dame Harriet Walter: The actress on learning what it is to age, plastic surgery, and her unease at being honoured by the establishment

Dame Harriet Walter interview

The actress on learning what it is to age, plastic surgery, and her unease at being honoured by the establishment
Art should not be a slave to the ideas driving it

Art should not be a slave to the ideas driving it

Critics of Tom Stoppard's new play seem to agree that cerebral can never trump character, says DJ Taylor
Bill Granger recipes: Our chef's winter salads will make you feel energised through February

Bill Granger's winter salads

Salads aren't just a bit on the side, says our chef - their crunch, colour and natural goodness are perfect for a midwinter pick-me-up
England vs Wales: Cool head George Ford ready to put out dragon fire

George Ford: Cool head ready to put out dragon fire

No 10’s calmness under pressure will be key for England in Cardiff
Michael Calvin: Time for Old Firm to put aside bigotry and forge new links

Michael Calvin's Last Word

Time for Old Firm to put aside bigotry and forge new links