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Suspended possession: Court of Appeal issues guidance

Court Exterior Print publication

05/09/2016

The Court of Appeal has given clear guidance as to the correct approach for the court when exercising its discretion to make a suspended possession order. Housing Litigation specialists Karl Anders explains.

City West v Massey and Roberts v Manchester & District

When making a possession order where the landlord is relying on discretionary grounds the court has a very wide statutory discretion. This includes whether to make an outright order requiring a tenant to deliver up possession or a suspended possession order (i.e. enforcement cannot take place unless the tenant breaches stated conditions) [1].  In one judgment covering the appeals in two cases arising out of similar facts [2], the Court of Appeal has provided guidance on the correct approach for the exercise of the court’s discretion.

In both the Massey and the Roberts cases the tenant had allowed a room in their rented property to be used for growing cannabis.  When the respective social landlords sought possession, the tenants lied about the circumstances in which the tenancy agreements had been breached.  Nevertheless, the District Judges in the respective cases exercised their discretion and made suspended possession orders subject to conditions regarding the tenants’ future compliance with the terms of their tenancies and future monitoring/inspection by the landlords.  The landlords appealed to the Court of Appeal, which had to consider:

  • the correct approach as to the exercise of the court’s discretion to make suspended possession orders – particularly where a tenant has been dishonest and there may therefore be legitimate doubt regarding cessation of previous conduct and future compliance with tenancy terms; and
  • whether conditions should be imposed which place responsibility on the landlord or other authorities.

Court of Appeal guidance

Unanimously upholding the suspended possession orders made in the lower courts, the Court of Appeal set out the following guidance:

  • Firstly, the grant of a suspended possession order is case-sensitive and the proper resolution of every case must turn on its own facts.
  • This guidance does not amount to a checklist, as the dangers with that could be (1) an expectation that other matters were irrelevant or carried less weight; (2) that judges may fail to recognise or take into account other facts or matters which may be relevant; and (3) that a checklist might induce an unhelpful tick-box approach.
  • Exercise of the court’s discretion requires a true exercise of judgment, involving a multi-factorial and commonsensical assessment.
  • Some (non-exhaustive) factors which a court may wish to take into account include: cooperation with housing authorities and prosecuting authorities; honesty on the part of the tenant; full disclosure of prior behaviour; genuine remorse on the part of the culpable tenant and early acceptance of culpability; the desire on the landlord’s part for the provision of accommodation to other more deserving individuals; and the resources of the landlord (especially in the case of social landlords).
  • “Cogent” evidence is required that previous inappropriate conduct will cease and future tenancy terms will be complied with. To be “cogent”, evidence must be more than simply credible, it must be persuasive (although the standard is pitched at a realistic level and the tenant does not have to give a cast-iron guarantee).
  • Cogent evidence need not stem solely from the tenant. The likelihood or possibility of action by others (for example, support given by others or inspections carried out by others) might support an assessment that the tenant will comply with future obligations.
  • There is no rule that just because a tenant has lied, he or she cannot be given a suspended possession order. However, if tenants lie in court, they run the risk of the court finding that their evidence on future matters is not to be trusted and that the court may not accept their assurances in support of a request to suspend.
  • As the making of a possession order involves the findings of fact on which the exercise of discretion is based, tenants should normally give evidence in court so that credibility can be assessed. Any discrepancies in evidence should be challenged in cross-examination, and possibly cross-checked with any other available objective evidence.
  • The principles governing the giving of reasons for judicial decisions apply to the exercise of discretion to suspend possession and the court should give reasons which explain its order.

WM Comment

Whilst this case does not make new law it should be welcomed due to the provision of the above guidance, which should help courts adjudicate fairly between the parties. In addition, as Lady Justice Arden indicated in her judgment [3], having this clear guidance in place may help more parties to reach agreement in future cases, and thereby to avoid the time and costs involved in litigation or attendance at trial.  The reference to the giving of reasons for suspension is also helpful as it will focus the courts’ consideration on all the circumstances of the case and hopefully lead to less arbitrary outcomes.

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[1] under section 9 of the Housing Act 1988 in relation to assured tenancies, and under section 85 of the Housing Act 1985 in relation to secure tenancies
[2] City West Housing Trust v Lindsey Massey and Manchester & District Housing Association v Vincent Roberts [2016] EWCA Civ 704
[3] Ibid para 45

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