In proceedings for possession of residential premises let under a rent act, secure, or assured tenancy, the court has a discretion, either on the making of an order for possession or at any time before the execution of that order, to stay or suspend execution or to postpone the date of possession, for such period as it thinks fit (s.100(2) Rent Act 1977, s.85(2) Housing Act 1985, s.9(2) Housing Act 1988). Alexander Goold examines the implications of some recent decisions.
In proceedings for possession of residential premises let under a rent act, secure, or assured tenancy, the court has a discretion, either on the making of an order for possession or at any time before the execution of that order, to stay or suspend execution or to postpone the date of possession, for such period as it thinks fit (s. 100(2) Rent Act 1977, s. 85(2) Housing Act 1985, s. 9(2) Housing Act 1988)
Once a warrant of possession for such premises has been executed, the court ceases to have a discretion to stay, suspend or postpone, until such time as the warrant has been set aside. A warrant of possession of such residential premises may only be set aside, after execution, on one of 3 grounds: (i) the order on which the warrant is issued is itself set aside (The Governors of the Peabody Donation Fund v Hay (1987) 19 HLR 145 CA); (ii) the warrant has been obtained by fraud; (iii) there has been an abuse of process or oppression in its execution (Leicester City Council v Aldwinckle (1991) 24 HLR 40; London Borough of Hammersmith and Fulham v Hill (1995) 27 HLR 368 CA ).
In London Borough of Hammersmith and Fulham v Lemeh. 3 April 2000 CA (New Law Online) and London Borough of Lambeth v Hughes, 8 May 2000 CA (New Law Online), the Court of Appeal has recently had to consider what may constitute oppression in the execution of a warrant of possession.
Classic instances of oppression in the execution of a warrant of possession have tended to involve either: (i) the making of a demand by the landlord for payment of a lump sum by the tenant as the only means of halting eviction without also informing the tenant of his ability to apply to stay, suspend or postpone possession; or (ii) an indication by the landlord to the tenant that he would stay his hand or consider staying his hand but then proceeding to execute the warrant. The reasoning underlying such instances of oppression is that the landlord, by his conduct, has deprived the tenant of an opportunity to apply to court for relief that the court may be prepared to grant.
Landlords have been able successfully to avoid allegations of oppression where, for example, there has been correspondence from landlord to tenant stating that he had applied for eviction, which he was only prepared to cancel on payment of the whole of the arrears but that the tenant had the right to apply to court for a stay, suspension or postponement and that any such application would be opposed (Camden London Borough Council v Akanni (1997) 29 HLR 845 CA). However, as the Court of Appeal has made clear, the category of oppression is not closed (Barking & Dagenham LBC v Saint (1999) 31 HLR 620 CA).
London Borough of Lambeth v Hughes is an illustration of oppression caused by a demand for payment of a lump sum by the landlord as the only means of halting eviction, without also informing the tenant of his ability to apply for a stay or suspension. It is also authority for the proposition that the combined effect of a landlord’s conduct and misleading advice given to a tenant, not by the landlord but by a court officer, can amount to oppression in the execution of a warrant.
In London Borough of Hammersmith and Fulham v Lemeh, the Court of Appeal appeared to go further still and hold that oppression could include oppression caused, not by the landlord, but solely as a result of misleading information given by the court office. Lord Justice Nourse’s reasoning was as follows:
“Once the warrant has been obtained, its execution is a matter between the court and the tenant. It is the officer of the court who executes the warrant and the landlord has no part in that process. Moreover, there seems to be no reason why oppression should be confined to oppressive conduct on the part of the landlord or some other person. It ought to include any state of affairs which is oppressive to the tenant.” [my emphasis].
Thus, it seems that oppression may be occasioned not only by the conduct of a person, whether the landlord or not, but also the existence of “a state of affairs”.
London Borough of Hammersmith and Fulham v Lemeh was cited with approval in London Borough of Lambeth v Hughes. However, in giving his judgment, Lord Justice Nourse had expressly disavowed the view that the appeal would have a wide effect on other comparable cases and had stated that it was a case that depended on its own very special facts, which he believed were not likely to reoccur in any other. Moreover, he had dismissed the appeal by the landlord on the simple ground that the district judge came to a conclusion to which he was entitled to come on the facts. Thus, his remarks as to what may constitute oppression are, strictly speaking, obiter and not part of the ratio of the case.
Nonetheless, the decision is already being applied in other cases. It remains to be seen how far the courts will be willing to go in finding oppression in the conduct of third parties or even in particular states of affairs.