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Handling Suspended Possession Orders

Important Clarification at Last

In City West Housing Trust v Massey and Manchester & District HA v Roberts [2016] EWCA Civ 704 the Court of Appeal has set out some non-prescriptive guidance on how courts should exercise the discretion to suspend immediate orders for possession (‘SPOs’).  In two conjoined appeals from the county court, it permitted second appeals in order (i) to clear up uncertainty in the way the discretion is exercised when a tenant’s evidence is found to be untrue (in whole or part) and (ii) to consider whether, in granting an SPO, the court should impose conditions that burden a landlord or another third party (so-called ‘external factors’).  Both cases involved the illegal growing of cannabis. 

The CA held that, before making an SPO, the court must be satisfied that there is a sound basis for hope that the tenant will cease his previous conduct and observe the terms of the tenancy in future.  Without it a landlord is entitled to possession.  The court should therefore hear evidence which can be tested.  The evidence must be cogent (not just credible, but persuasive) with a focus on the future and not the past.  Evidence of future action by third parties might, in appropriate circumstances, form part of the assessment (eg, tenants with mental health issues whose future compliance is more likely with external support).  The court should not expect social landlords or (say) the police to do more than is reasonable.  But some landlords may wish to inspect their premises as an ordinary incident of checking their housing stock.  Dishonest evidence is no bar to making an SPO if cogent evidence offers a real hope that the tenancy will in future be respected.  But tenants who lie run the risk that their assurances as to the future may be disbelieved.

The court rejected a check-list approach, but commended a 2-stage approach of fact-finding followed by the exercise of discretion.  Matters such as co-operation with HA’s and prosecuting authorities, honesty and full disclosure of previous inappropriate behaviour, genuine remorse, early acceptance of culpability and the length of time the illegal activity took place all have a part to play.   Courts should give reasons for their decision.  

Derek Kerr / 8th Jul 2016


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