Haniff v Robinson

Landlord and tenant — Rent Act 1977 — Whether a landlord having obtained an order for possession is entitled to take possession of premises against a statutory tenant without the county court bailiff The plaintiff was the owner of 36 Ferndale Road, London N15 — By an agreement dated December 6 1988 the plaintiff let the premises to the defendant for a term of six months — Following the expiration of the contractual term the defendant remained in possession — Between September and November 1989 the defendant was in the United States — In August 1989 the plaintiff, without the defendant’s knowledge, issued proceedings claiming possession of the premises wrongly contending that he was a resident landlord — On October 31 1989, in the defendant’s absence, a possession order was made in Edmonton County Court taking effect on November 28 1989 — On November 27 1989 the defendant, having learnt of the order, made an application to set aside the order for possession and the judgment which had resulted in that order — On December 4 1989, notwithstanding that the plaintiff was aware of the defendant’s application, the plaintiff applied for execution of the order for possession — On December 24 1989 the plaintiff forcibly ejected the defendant — On January 22 1990 the order for possession was set aside — In the county court Judge Cox determined that the plaintiff landlord could not resort to self-help and awarded the defendant the sum of £28,300 including interest, in her counterclaim, partly in respect of her claim for unlawful eviction under section 27 of the Housing Act 1988 — On appeal it was submitted on behalf of the plaintiff that a tenant ceases to be a statutory tenant under the Rent Act 1977 when a possession order is made in the county court or, alternatively, when the possession order takes effect or, alternatively, when a landlord applies for the warrant of execution; accordingly the plaintiff was entitled to take possession without the county court bailiff Held: The appeal was dismissed — The clear language of section 2(1) (a) of the Rent Act 1977 is that a statutory tenant remains a statutory tenant so long as he occupies the dwelling-house as his residence — However, once an order for possession is made, the extent of his right as a statutory tenant can and will be curtailed — The defendant was entitled to the protection of section 3 of the 1977 Act, which provides that it is not lawful for an owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises — The protection afforded by section 3 continues until there has actually been execution in the ordinary way by the court’s bailiff in accordance with the requirement of the county court rules; Ord 26, r17, of those rules providing that a judgment or order for the recovery of land shall be enforceable by warrant of possession — Section 100 of the Rent Act 1977 gives the court a discretion to stay or suspend execution of the possession order and it cannot be the position that it was intended that the landlord could take the matter into his own hands and recover possession himself. The following cases are referred to in this report. Aglionby v Cohen [1955] 1 QB 558; [1955] 2 WLR 730; [1955] 1 All ER 785 American Economic Laundry Ltd v Little [1951] 1 KB 400; [1950] 2 All ER 1186, CA Brown v Draper [1944] KB 309 Clifton Securities Ltd v Huntley [1948] 2 All ER 283 Kyriacou v Pandeli [1980] CLY 1648 This was an appeal by the plaintiff, Hassan Haniff, from the decision of Judge Cox in Edmonton County Court, who on May 25 1991 gave judgment to the defendant, Susan Robinson, on her counterclaim for damages for unlawful eviction under section 27 of the Housing Act 1988, from premises at 36 Ferndale Road, London N15. Ita Marshall (instructed by Craigen Wilders & Sorrell) appeared for the appellant plaintiff; David Watkinson (instructed by Norton & Co) represented by the respondent defendant. Giving judgment, WOOLF LJ said: This appeal raises a single issue as to whether a landlord, who has obtained an order for possession in the county court against the statutory tenant, is entitled to resort to self-help and take possession of the premises himself without involving the bailiff in executing the order for possession. The issue arises on this appeal because, on May 25 1991, Judge Cox in Edmonton County Court determined this issue against the plaintiff landlord and awarded the defendant, his former statutory tenant, the sum of £28,300 odd, including interest, in her counterclaim, partly in respect of her claim for unlawful eviction under section 27 of the Housing Act 1988. The facts so far as relevant are not in dispute, the judge having rejected the evidence of the former landlord, the plaintiff, Mr Hassan, and accepted the evidence of the former tenant, the defendant, Miss Susan Robinson. The landlord owned 36 Ferndale Road, London N15. On December 6 1988 he entered into a tenancy agreement with Miss Robinson under which she was entitled to occupy the premises for a period of six months. The contractual tenancy therefore came to an end by effluxion of time on June 6 1989. After June 6 1989 the tenant remained in possession. The landlord served an invalid notice to quit, which does not affect the situation. In September 1989 the tenant visited the United States, returning in November 1989. Without her knowledge, in August 1989 the landlord had issued proceedings, wrongly contending that he was a resident landlord. The proceedings did not come to the defendant’s notice until after she returned from the United States. In her absence a possession order was made on October 31 1989 to take effect on November 28 1989. The day before it was due to take effect, the tenant, having learnt of the order, made an application to set aside the order for possession and the judgment which had resulted in that order. The landlord was aware of the fact that she had made that application but, notwithstanding that, on December 4 1989 he applied for execution. On December 24 1989 he forcibly ejected the tenant. On January 22 1990 the possession order which had been made was set aside. For the purposes of this appeal, it is not necessary to take account of the implications which arise or could arise as a result of the possession order being set aside. However, the facts of this case do illustrate the injustice which could arise if Miss Marshall is correct in the admirable submissions which she has advanced on behalf of the landlord, to the effect that in this case he was entitled to resort to self-help. As regrettably is often the case where Rent Act issues are involved, the answer to the issue identified at the beginning of this judgment requires an undesirably tortuous journey through a number of statutory provisions. It is convenient to start at the end of that journey and work backwards from the provisions dealing with unlawful eviction which resulted in the order for damages being made in the court below. The starting point is section 27 of the Housing Act 1988. Subsection (1) of that section provides: This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as ‘the landlord in default’) or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. I emphasise the word ‘unlawfully’ in that subsection and the words ‘residential occupier’. Subsection (2) contains a similar provision to that contained in subsection (1), which it is not necessary to cite. Subsection (3) is important and provides: Subject to the following provisions of this section, where this section applies, the landlord in default shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 28 below. I draw attention to the words ‘right to occupy’. Subsection (4)112 indicates that the liability for damages shall be in the nature of a liability in tort. Subsection (9)(a) contains a definition of residential occupier, the relevant words being: ‘residential occupier’, in relation to any premises, has the same meaning as section 1 of the 1977 Act; Section 1 of the Protection from Eviction Act 1977 states that: ‘residential occupier’, in relation to any premises, means a person occupying the premises as a residence, whether under a contract or by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of any other person to recover possession of the premises. The important words so far as this appeal is concerned are the words ‘any enactment or rule of law . . . restricting the right of any other person to recover possession of the premises’. Any other person in this context would apply to the landlord. Section 28 sets out the measure of damages. It is not necessary to refer to the terms of that section. We can leave the 1988 Act and proceed to the 1977 Act, bearing in mind that the issue in this case was whether there was a person, namely the landlord, who was restricted in his right to recover possession of the premises by virtue of an enactment or rule of law. Section 1 of the Rent Act 1977 provides: Subject to this Part of this Act, a tenancy under which a dwelling-house . . . is let as a separate dwelling is a protected tenancy for the purposes of this Act. Section 2(1)(a) provides: Subject to this Part of this Act — (a)  after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it; Applying sections 1 and 2 to the facts of this appeal, the position is that for the first six months (the period of the original letting) the tenant was a protected tenant. Thereafter, she became a statutory tenant under section 2(1)(a) and, giving the words of that subsection their natural meaning, it would appear that she was by the Act to remain a statutory tenant so long as she continued in occupation of the dwelling-house. Miss Marshall contends, however, that that is not the effect of the subsection. She contends that the tenant ceased to be a statutory tenant for the purposes of the subsection when the possession order was made in the county court or, alternatively, when the possession order took effect or, alternatively, when her client applied for the warrant of execution. She submits that she obtains support for that approach from two decisions. The first of those decisions is Brown v Draper [1944] KB 309 and the second of those decisions is American Economic Laundry Ltd v Little [1951] 1 KB 400. It is necessary to refer only to the second of those cases which were decisions of this court, because in the judgments in the second of those cases, reference is made back to the case of Brown v Draper. In the American Economic Laundry case, a final order for possession had been made, but that order for possession had been suspended. During the period of suspension the tenant died. The tenant having died, his daughter sought to rely on the provisions which would give her the right to succeed to the statutory tenancy. Reading from the headnote, it was held: that, although by the indulgence of the court, a statutory tenant might be permitted to continue to occupy premises after the making of an order for possession, he was not, during such a period of occupation, a statutory tenant with all the rights to protection conferred by the Rent Restriction Acts which he had enjoyed before the order for possession was made; and, consequently, the daughter could not claim protection as a ‘tenant’ under s12 sub-s(1) that being a reference to the then relevant legislation. As the Master of the Rolls pointed out during the course of argument, there is a difference between saying that ‘a person is not a statutory tenant’ from saying that ‘a person is not a statutory tenant with all the rights to protection’ such a tenant can possess. When one comes to look at the judgments in the American Economic Laundry case, it appears clear that the approach which the court was adopting in that case was to regard the tenant against whom a possession order had been made as a statutory tenant who did not have all the rights to protection conferred by the Rent Restriction Acts. Somervell LJ, at p 403, said: The question as stated at the beginning of his argument by Mr MacDermot was whether a tenant against whom a final order for possession has been made is a tenant within s12, sub-s1 (g). That definition of ‘tenant’ like all the definitions in the Act of 1920, is to be read as applying except where the context otherwise requires. The judge decided that the defendant was within that definition and could remain in possession. In a long and careful judgment he said, and I agree with him, that the point is not free from difficulty. He referred first, to two statements in Brown v Draper, where Lord Greene MR used more than once words to this effect: ‘the only ways in which’ a tenant ‘can be deprived of the protection of the Acts are (a) by giving up possession, in which case no order for recovery of possession against him is required; (b) having an order for recovery of possession made against him’. Those words, read literally, might be taken to indicate that the order for possession in itself deprived him of the protection of the Act. On the other hand, the county court judge referred to this statement by Scrutton LJ in Keeves v Dean: ‘I take it that’ the tenant ‘has a right as against all the world to remain in possession until he is turned out by an order of the court’. The difference between the literal meanings of those two statements of the law is illustrated by this case. I agree with the county court judge, in that I do not think that Lord Greene had in mind what we have to consider here, namely, the position of a tenant, a person who has been a statutory tenant (I am not begging the question by using the word ‘tenant’ but it is a convenient expression) between the time when the order for possession is made and the time when it falls to be executed having regard to a suspension granted under s5, sub-s2, of the Act of 1920. I do not think that that point was in the mind of either Lord Greene or Scrutton LJ but the former in the words above quoted, expressed something with which I respectively agree, and which seems plain, namely, that an absolute order for possession made against a tenant fundamentally alters the position. Somervell LJ, later in his judgment, said: I agree with my brother Jenkins’ observation, made in the course of the argument, that the position of someone against whom an order for possession has been made, and then suspended at common law or under s5, sub-s2, of the Rent Act of 1920 is sui generis. I do not think that the problem which we have to solve is really assisted by considering in what respect his position is the same quoad the landlord as it was before the order was made. It is obviously fundamentally different in this respect, that, whereas before, he was entitled to the protection of the Act until successful proceedings were taken, he is now in the position that proceedings have been taken and that an order for possession has been made. All that he has is a right to apply for postponement under s5 and sub-s2. In my opinion a tenant in that position, that is to say where an absolute order for possession has been made against him, notwithstanding that it may be suspended, is not a tenant for the purposes of s12, sub-s1 (g). That I think is in accordance with a common-sense application of the paragraph. It would be an illogical result, I think, if the paragraph gave a protection to a widow which the court had expressly taken away from her deceased husband, on whose tenancy she relies, that tenancy having been brought to a suspended end by the order for possession. At p 406, what Jenkins LJ said was: The tenant here died after the date of the order for recovery of possession against him but before the expiration of the last of a series of extensions which had been made by way of postponement of the date on which the order was to be complied with. What, then, was his position?  It is said that, notwithstanding the order for possession, he was still a statutory tenant. To say that seems to me really to beg the question. It may well be that he could be described as a statutory tenant; but that description would not itself accurately define his precise position, for he was a statutory tenant against whom a final order had been made, under which possession was to be delivered up on a fixed date, April 3 1950, he having died on the previous March 8. During the intervening period between the date of such an order and date fixed for delivery of possession it may very well be, and indeed obviously must be, that the statutory tenant has certain rights and certain obligations. For instance he would have to pay the equivalent of the rent during the period of his occupation between the date of order and the date of giving up possession. But that is not to say, and it obviously cannot be the case, that he is still the statutory tenant for all purposes, so as to be in the same position as if the order had never been made. He has nothing left but the limited interest granted to him by what may perhaps be described as the indulgence of the court under s5, sub-s2, of the Act of 1920. In effect he has a period of grace. I therefore do not regard those authorities as affecting what I would conclude was the clear language of section 2(1)(a) of the 1977 Act, that a statutory tenant remains a statutory tenant so long as he occupies the dwelling-house as his residence. However, I do accept that once an order for possession is made, the extent of his right as a statutory tenant can and will be curtailed. If that is the position, it is necessary to consider section 3 of the Protection from Eviction Act 1977. Section 3 of that Act, so far as relevant, states: Where any premises have been let as a dwelling under a tenancy which is not a statutorily protected tenancy nor an excluded tenancy and (a)   the tenancy (in this section referred to as the former tenancy) has come to an end, but (b)    the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. 113 Unless the tenant here was a statutorily protected tenant, as the premises were not let to her on an excluded tenancy, she is entitled to the benefit of that protection. Section 8(1) of the Protection from Eviction Act contains a definition of a statutorily protected tenancy. That definition makes it clear that a statutory tenant is not the holder of a statutorily protected tenancy. Accordingly, the tenant whom we are here considering was entitled to the protection of section 3. The reason that a protected tenancy, for example, does not fall within section 3 is because there is a separate regime of protection provided for such tenants. Having come to the conclusion that the tenant is entitled to the protection of section 3, the next question is, when does that protection cease?  The section provides that it was to continue and to prevent the owner from enforcing against the occupier a right to possession otherwise than by proceedings in the court. The words ‘otherwise than by proceedings in the court’ do not clearly indicate what is to be treated as being included in the proceedings. However, I have no doubt that, in the context of the statutory tenancies with which we are here concerned, that what is intended to be the effect of section 3 is that it should continue to provide protection until there has actually been execution in the ordinary way by the court’s bailiff in accordance with the requirement of the county court rules. Ord 26, r17 of those rules provides: (1)  A judgment or order for the recovery of land shall be enforceable by warrant of possession. The rules indicate no other way of enforcement. The table of procedure presupposes that, after an order is made, that will be followed by a request for execution in due course by the person in whose favour the order has been made, followed by the execution by the court bailiff. The actual warrant for possession of land which is issued in consequence of the request under Ord 26, r17, makes the position clear. It is addressed to the district judge and bailiffs of the court, and it presupposes that the bailiff, having obtained possession, will deliver that possession to the plaintiff. The position is clarified by the effect of section 100 of the Rent Act 1977. Section 100 deals with the extent of discretion of the courts in respect of claims for possession of residential dwellings where the Rent Act applies. Subsection (2) states: On the making of an order for possession of such a dwelling-house, or at any time before the execution of such an order . . . the court, subject to subsection (5) below, may (a)  stay or suspend execution of the order, or (b)  postpone the date of possession, for such period or periods as the court thinks fit. As the subsection gives the court a discretion to stay or suspend execution of the order, it cannot be the position that it was intended that the landlord could take the matter into his own hands. When there is a stay or a suspension of execution, he cannot rely on the order for possession as giving him a right to possession. There is also the problem, if Miss Marshall is correct, that you would have a situation arising where, once a statutory tenancy had ceased to exist on an order for possession being made, it would be revived if the court were to exercise the powers which are contained in subsection (4) of section 100, subsection (4) providing: If any such conditions as are referred to in subsection (3) above are complied with, the court may, if it thinks fit, discharge or rescind any such order as is referred to in subsection (2) above. There is a passage in the 11th ed of Megarry, The Rent Acts at p 386 which leaves the position open. It says: Again, a landlord who has obtained an order for possession may still be entitled to re-enter peaceably without invoking the assistance of the sheriff, even during a stay of execution; but this may now be confined to cases where nobody is lawfully in residence. The passage refers to two authorities, Aglionby v Cohen [1955] 1 QB 558 and Clifton Securities Ltd v Huntley [1948] 2 All ER 283. We have been referred to those authorities. They dealt with cases which did not involve statutory tenants. They did not deal with situations where the Protection from Eviction Act 1977 could apply and, in my judgment, they are of no assistance here. Indeed, the passage in Megarry is wrong, in so far as it suggests that there may be a right in a landlord to re-enter peaceably, in the circumstances of this sort of case, between an order for possession and execution of the order by the bailiff. In that regard, the note in the 1991 Supreme Court Practice at p 726 is correct, in so far as it states in relation to Ord 45, r 3: In relation to a dwelling-house, whether it is a protected tenancy or not, the plaintiff may not enter into possession himself, even peaceably, and he can only enter into possession under a writ of possession (Protection from Eviction Act 1977, s3) negativing to this extent Aglionby v Cohen. It also follows that the county court decision in the case of Kyriacou v Pandeli [1980] CLY 1648, was correctly decided. The position here is that the landlord, although he had obtained an order of possession, had no right to resort to self-help to take possession of the premises in question. By doing so he was guilty of unlawful eviction and, accordingly, the judge in the court below was right to conclude that this was a case in which the tenant, on her counterclaim, was entitled to damages under section 28 of the Housing Act 1988. I would dismiss this appeal. LORD DONALDSON OF LYMINGTON MR and LEGGATT LJ agreed and did not add anything. Appeal dismissed. Costs against the appellant not to be enforced without the leave of the court.