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N28A - suspended possession order |
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As most practitioners will know, earlier this year the CA held that the
traditional suspended possession order made against a secure T did not
have the effect that virtually everyone thought it did.
In essence, the
intention behind that traditional order was to give T one last chance to
maintain the tenancy (ie by complying with the payment timetable). But, the
CA held that the wording meant the tenancy automatically terminated from
the date for possession given within the order (and so it did not carry on as
a tenancy merely because T paid the rent instalments). Accordingly, once
that date arrived, T remained in occupation as a ‘tolerated trespasser’. If T
was a secure T then it would mean he can no longer exercise the right to buy,
his family will no longer have rights of succession, and he could not sue on
the terms of the tenancy agreement.
In July, a new form N28A was introduced, which has wording cleverly
designed to achieve what the old suspended possession order tried to do.
Thus, Ts who comply with such an order will not inadvertently become
tolerated trespassers. But, there remain two outstanding problems:
- what about Ts who had suspended possession orders made against them
under the old N28? They will be tolerated trespassers – even if they are
blameless (ie they paid the rent instalments). No one has really come up
with a solution as to how that position can be remedied (a group litigation
order to reverse that position has been ruled out). However, it is always open
to the former T (or the LA) to apply to vary the possession order to eradicate
the tolerated possession status, or to revive the tenancy;
- the original decision was in the context of a secure tenancy. Indeed, many
assumed that this decision would only apply to secured Ts. But, a
correspondent in the Gazette writes forcefully that it also applies to
assured Ts. It seems that there is academic debate on the point, but the
view of most practitioners and judges is that assured Ts are subject to
the same law as secure Ts in this regard. Thus, do not assume that the
problems of old suspended possession orders are only relevant in the
context of secure Ts (they may also apply to assured Ts).
For a discussion see [2006] LSG 31 August 26; 21 September 17; and [2006] NLJ 1285.
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October 2006 |
