Citation
Lee, R. and Waterson, G. (2002), "Residential tenancies: possession orders", Property Management, Vol. 20 No. 1. https://doi.org/10.1108/pm.2002.11320aab.009
Publisher
:Emerald Group Publishing Limited
Copyright © 2002, MCB UP Limited
Residential tenancies: possession orders
Residential tenancies: possession orders
Jephson Homes Housing Association v. Moisejevs [2001] 41 EG 186
The question which arose in this case was whether the fact that the tenant had apparently been under the mistaken misapprehension that she had done all that was necessary to avoid the enforcement of a warrant of possession, by paying off the greater part of the outstanding rent arrears together with the court costs, was sufficient to allow the court to set the warrant of possession aside and to reinstate the tenant in the property concerned.
Unfortunately not, said the Court of Appeal: the line of cases going back to Leicester City Council v. Aldwinckle (1991) 24 HLR 40 made it clear that the only circumstances where such a warrant can normally be set aside are where either: the order on which it is based is itself set aside; the warrant has been obtained by fraud; or there has been an abuse of process or oppression in its execution.
In this case the Housing Association had written the tenant a letter on 17 March 2000. The contention of the tenant was that either as a result of this letter or as a result of subsequent telephone conversations with representatives of the Housing Association, she had either been persuaded to believe, or in the alternative had in fact come to believe, that simply by paying off the amount of arrears which had been outstanding at the time of the making of the original order for possession before the date of the eviction she would have done all that was necessary to avoid eviction, without the need formally to make an application under s.85(2) of the Housing Act 1985 requesting the court to suspend the original possession order.
The court was sympathetic, on the merits of the matter at least, but as regards the law remained unmoved: there may well have been some degree of misunderstanding on the part of the tenant, but there had been no oppression: in consequence there was no available remedy and the tenant's appeal was dismissed.
Rosalind LeeGeoff Waterson