Austin v Mayor and Burgesses of the London Borough of Southwark PDF

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Austin v Mayor and Burgesses of the London Borough of Southwark [2010] UKSC 28 Context: The Appellant’s brother, who is now deceased (“the Deceased”), held a secure tenancy under the Housing Act 1985 (“the 1985 Act”) of a property owned by the London Borough of Southwark (“the Authority”). The Appellant contends that he lived in his brother’s home for the 12 months preceding his death, caring for him during his terminal illness. The Appeal arises from the efforts of the Appellant to resist the Authority’s efforts to evict him from the property. On 4 February 1987, a conditional suspended possession order (“the CSPO”) was issued by the court against the Deceased on the ground he was in arrears of rent. The CSPO’s terms provided that it would not become enforceable if he paid the sum due by 4 March 1987. He failed to pay by the specified deadline and so the CSPO became enforceable. However, the Authority did not take any action to evict him and he remained in the premises until his death some 18 years later, paying the rent as it became due plus sums towards the outstanding arrears. Two principal issues arise in the Appeal. Firstly, whether pursuant to s.82(2) of the 1985 Act the secure tenancy was terminated by the Deceased’s failure to pay the arrears of rent by the date specified in the CSPO so that he remained in the property as a so-called ‘tolerated trespasser’; or, alternatively, whether the tenancy continued until his death, with the effect that the tenancy could transmit to the Appellant via the Deceased’s estate. Secondly, whether the statutory right of a former secure tenant to apply to the court to postpone enforcement of a possession order, pursuant to s.85(2) of the 1985 Act, terminates on the death of a tenant, or is capable of transferring to the Appellant so as to allow him to apply to the court to postpone the possession order. Issue one- Lord Hope referred to the observation of Lord Reid in R v Knuller (Publishing, Printing and Promotions) Ltd[1973] AC 435 that “[i]n the general interest of certainty in the law we must be sure that there is some very good reason before we so act… I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament“. Lord Hope held that he was not persuaded that the Supreme Court should depart from the decision of the House in Knowsley. Lord Hope considered that the effect of reversing such a decision which had stood for so long was incalculable in the circumstances. In particular, there was a concern about the effect that a retrospective reversal would have on social landlords who have for so long assumed that those who have failed to comply with the conditions in a suspended possession order were no longer tenants with the right to enforce the implementation of repairing covenants. Lord Hope suggested that is was likely that the consequences of reviving those covenants and the opportunity this would give for claiming damages for breach was one of the factors that led to the decision that the law should be amended by the 2008 Act only prospectively. The 2008 Act provides for the creation of replacement tenancies which are new tenancies which have effect on the same terms and conditions that were applicable to the original tenancies immediately before they ended. To declare that Thompson was no longer good law would therefore cut across this system and undermine the will of Parliament.

Second issue:

The Court of Appeal considered that is was bound by the decision of Brent London Borough Council v Knightley [1997] 29 HLR 857 that the right to apply for the postponement of the order for possession under section 85(2) is not an interest in land “capable of being inherited” and hence it could not survive the tenant’s death. Lord Hope considered that whether the interest in land was “capable of being inherited” was the wrong question to ask and that the question was in fact whether the right is capable of being transmitted. Given that the right to apply under section 85(2) of the Act is a right conferred by statute, the answer to the question could only be determined by construing the statute rather than considering whether the right was capable of being inherited at common law. Turning to the Act, Section 85(2) states that the powers referred to are exercisable “at any time before the execution of the order“. The possibility that the tenant might in the meantime have died is not referred to. The words of the section are wide and unqualified and there is no suggestion that the power of the court to postpone enforcement of the possession order is not exercisable after the tenant’s death. Lord Hope was also persuaded by various practical examples. For instance, he considered that the Act must have been intended to allow the personal representatives of a deceased tenant to continue an application to postpone possession where the tenant died just one day before the application was due to be heard. The wording of the Actdid not compel a reading which would deny the Court jurisdiction in such circumstances. Lord Hope also observed that elsewhere in the Act, it specifically refers to what will happen on the death of a tenant. Further, section 90, which deals with fixed term tenancies, contemplates that a tenancy may continue after the tenant dies. Lord Hope therefore held that Knightley had been wrongly decided and should be overruled: the fact that a former secure tenant dies does not deprive the Court of its jurisdiction to exercise the power conferred on it by section 85(2)(b) of the Act to postpone the date of possession under a possession order. Lord Hope concluded as follows: “I have to say that I regard this solution to his case to be preferable to the solution for which Mr Luba contended under the first issue. It is directed precisely to the situation that arises where a former tenant who has become a tolerated trespasser has died. Above all, it preserves the discretion of the court under section 85(2) to do what is just in all the circumstances. This is a protection for the landlord which would be entirely absent if the first solution were to be adopted.”...