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Under-occupiers, be aware!

In the recent case of Holt v Reading Borough Council [2013] EWCA Civ 641 the CA held that it is open to the trial judge to make a conditional order for possession on the ground of under-occupation, even when no suitable alternative accommodation is available at the date of the possession hearing.

Mrs Holt had succeeded to a secure tenancy of a 3 bedroom property on the death of her mother which she occupied as a single person.

At the date of the possession hearing, the Recorder found that it was reasonable to make a possession order.  However, as no offer of suitable alternative accommodation had been made at the date of the hearing, she made an order for possession within 28 days of a formal binding offer being received by the defendant from the claimant of suitable alternative accommodation.

Mrs Holt appealed on the basis that the Recorder ought to have decided whether a particular unit of accommodation was suitable, and whether that unit would be available when the order took effect.

In dismissing the appeal, the CA set out:

  • The court cannot make an order for possession, whether conditional or otherwise, unless it is satisfied that suitable accommodation will be available when it is to take effect;
  • There is no requirement either that an offer of accommodation has been made before the date of the hearing of the application for the possession order or that the accommodation is available at the date of that hearing;
  • The court will need to be satisfied that suitable alternative accommodation will be available for the tenant at the possession hearing. There is no good reason why the matter should not be remitted to a DJ when the order takes effect;
  • There is nothing in the legislation which says that the court must be satisfied that these requirements are fulfilled by reference to a particular property.

However, a conditional order would not always be appropriate. In certain circumstances, it would be appropriate to adjourn the final determination of the application until a particular property has been identified (e.g. if the tenant were vulnerable). Furthermore, any conditional order should include a time limit within which the local authority must make the suitable accommodation available, thereafter the order would lapse.

Philippa Seal / 1st Jul 2013


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