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Warrants

Issue of warrant for possession

First date warrant can be issued

Tuohy v Bell
[2002] EWCA Civ 423

A warrant cannot be issued before the date on which it is ordered that possession be given up. However, in this case, although the warrant was premature and therefore a nullity the CA nonetheless upheld the prison sentence against the defendant. It did so because he had refused to comply with the possession order and had told the judge that he had no intention of complying with the order. That was a contempt that justified the imprisonment.


Enforcing old possession orders

London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326

The issue

If a landlord has a possession order that it can no longer enforce, because the order is worded so as to prevent enforcement when arrears and costs have been paid off, is it entitled to issue a fresh possession claim? Held: Yes.

Facts

L had obtained a suspended possession order in 2001. Soon afterwards T failed to pay her rent and arrears as ordered.

In 2004 T paid off all her arrears and costs but L wanted to evict her due to her anti-social behaviour. The significance of paying off her arrears and costs becomes apparent from looking at paragraph 3 of the suspended possession order that was made in 2001:
    "You must pay the claimant the total amount of £1,169.15 by instalments of £2.65 per week in addition to the current rent. The current rent is £84 per week...When you have paid the total amount mentioned the claimant will not be able to take any steps to evict you as a result of this order." (emphasis added).
The effect of the order for possession was that T remained in her flat thereafter as a trespasser (see further now Tolerated trespassers). However, the wording of the order also prevented L from enforcing the order for possession. L sought to overcome this problem by issuing fresh possession proceedings, based on the fact that she was a trespasser. T argued that this was impermissible given the wording of the possession order and the fact that she had paid off all her arrears and costs.

The decision

The Court of Appeal characterised T's argument as meaning that she had become a perpetual tolerated trespasser; that "although in occupation as a trespasser she is, in law, irremovable" (para 40). Not surprisingly the Court dismissed this argument and drew attention to the way that T had misunderstood what L was doing. It was not seeking to enforce the 2001 possession order. It was merely asserting in fresh proceedings its right to possession on the basis that it held the freehold and T was a trespasser (para 41).

Comment

It might be thought that this case gives any landlord the right to issue a fresh possession claim against any person who has breached a suspended possession order. If the landlord could do this then it would be able to circumvent the defendant�s ability to apply under either the Housing Act 1985 or 1988 (sections 85(2) and 9(2) respectively) to suspend execution of the warrant. However, the Court noted that there would be a "powerful reason" to prevent an attempt by a landlord to circumvent the statutory protection that applies to orders made under the Housing Acts by issuing fresh proceedings against trespassers (para 38). What made T's case different was the fact that the order that had been obtained under the Housing Act was no longer enforceable.

It should be noted that the wording of Form N28 (suspended possession order) that was used in this case changed later in 2001 with the deletion of the words that are italicised above. So the problem posed in this case may not arise that frequently.

However, a similar issue is likely to arise with landlords who have failed to enforce possession orders within six years. This lapse of time means that the court's permission to enforce is required (CCR Ord 26 r5). In these circumstances this type of situation could arise because the court's permission to enforce after six years will not readily be obtained (Patel v Singh [2002] All ER 227, CA). In these circumstances the landlord should seek the court's permission to enforce and if permission is refused then it may issue fresh proceedings on the basis that the defendant is a trespasser.

This case and others illustrates the problems that can be created if possession orders are allowed to endure for several years. This may happen in a number of ways such as when (a) suspended possession orders are made when the circumstances require outright orders (b) landlords do not enforce promptly breaches of suspended orders or (c) judges suspend warrants in inappropriate circumstances.(This case report was kindly provided by Jon Holbrook, barrister at 2-3 Gray's Inn Square and chair of the Social Housing Law Association, www.shla.org.uk)

Article: "Rethinking Possession Orders" by Jon Holbrook and Nick Billingham - More ideas on how to tackle the various problems that arise in possession claims (New Law Journal, 13 April 2007) For full article click here.


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