Burrows v Brent LBC

Factual and Procedural Background

The Respondent and her spouse were granted a secure tenancy of a local-authority flat in The City in 1984. After the spouse left in 1986, the Respondent accrued rent arrears. On 29 January 1992 the county court made an immediate possession order and awarded the Appellant judgment for the arrears.

Before the possession date, the parties executed a written arrangement on 5 February 1992: the Respondent acknowledged the arrears, agreed to pay current rent plus weekly instalments towards the debt, and understood that failure would lead to eviction. The possession order nevertheless took effect on 12 February 1992.

The Respondent defaulted. A warrant was issued and executed on 8 June 1994, after which she commenced proceedings claiming that the 5 February 1992 arrangement had created a new secure tenancy (or licence) which the Appellant had unlawfully terminated. The trial judge and subsequently the Court of Appeal accepted that contention and ordered her reinstatement. The Appellant sought and obtained leave to appeal to the House of Lords.

Legal Issues Presented

1. Does an agreement by a local-authority landlord to postpone execution of an existing possession order, on conditions as to payment, create a new secure tenancy (or licence) protected by Part IV of the Housing Act 1985?
2. Alternatively, does the former tenant occupy merely as a “tolerated trespasser,” with no new tenancy arising, so that the original possession order remains enforceable?

Arguments of the Parties

Appellant's Arguments

• The 5 February 1992 document was only an agreement to forbear from executing the possession order while conditions were met; it did not intend to grant any new right of occupation.
• Section 85 of the Housing Act 1985 empowers the court—not the parties—to postpone possession after an order is made; therefore a private agreement cannot revive or create a secure tenancy.
• Treating every consensual indulgence as a new secure tenancy would produce impractical and “manifestly absurd” results, deterring humane arrangements with tenants and overburdening the courts.

Respondent's Arguments

• Because the original tenancy terminated on 12 February 1992 by virtue of section 82(2), the only legal basis for her continued occupation after that date must have been a new tenancy or licence arising from the 5 February 1992 agreement.
• Under section 79(3) a licence attracts the same protection as a tenancy; therefore the Appellant needed a fresh possession order before eviction.
• Classifying her as a “tolerated trespasser” would strip her of statutory and contractual protections (e.g., repairing covenants), an outcome Parliament could not have intended.

Table of Precedents Cited

Court's Reasoning and Analysis

Delivering the leading opinion, Judge [Browne-Wilkinson] held that the statutory scheme of the Housing Act 1985—especially sections 82 and 85—governs the status of secure tenancies after a possession order.

• Section 82(2) ends the tenancy on the possession date stated in the order, but section 85(2) allows the court, at any time before execution, to postpone that date, even after it has passed.
• Section 85(3)(a) contemplates payments of mesne profits, confirming Parliament’s expectation that former tenants might occupy without any subsisting tenancy.
• Accordingly, between the possession date and execution of the warrant, the former tenant occupies in a statutory “limbo” as a “tolerated trespasser.” The tenancy is neither alive nor finally dead; it can be revived only by a court order under section 85.
• The 5 February 1992 agreement expressed no intention to create a new tenancy. It simply recorded the Appellant’s conditional forbearance from execution.
• Permitting such agreements to create secure tenancies would undermine the Act’s practical operation, forcing landlords to seek repeated court orders whenever they show leniency.
• Therefore, no new tenancy or licence arose; the Respondent occupied as a tolerated trespasser, and the Appellant lawfully enforced the original order.

Holding and Implications

Appeal ALLOWED. The orders of the trial court and the Court of Appeal were set aside (save as to costs). The Respondent’s action for unlawful eviction failed.

Implications: The decision confirms that a landlord’s consensual indulgence after obtaining a possession order does not create a new secure tenancy. Former tenants who remain in occupation under such indulgences are “tolerated trespassers” unless and until the court, pursuant to section 85, formally varies or discharges the possession order. This preserves landlords’ willingness to negotiate and avoids unnecessary litigation, but leaves former tenants reliant on the statutory mechanism rather than private agreement for reinstatement of their tenancy.