Think tank

This case seems very similar to the recent case of Swindon Borough Council v Aston (Court of Appeal, December 2002). In that case, a suspended order for possession was made against a secure tenant. He breached the order but subsequently cleared the arrears altogether.

The Court of Appeal analysed the situation as follows: although the tenant lost his secure tenancy on breach he could still apply to the court to stay or suspend execution of any warrant or apply to postpone the date of possession under section 85(2) of the 1985 Housing Act.

However, as soon as he cleared the rent arrears and costs, that had the effect of making the suspended possession order no longer enforceable and section 85(2) no longer applicable.

The court decided he could not rely on section 85(4), which says the court can rescind or discharge an order where the conditions of the order are complied with, because he had breached the order in the first place.

The effect of this decision appears to be that a tenant can only apply to rescind an order for possession if he or she has complied with all its conditions. If they breach the order and then pay up later – or at the very last minute – they no longer have any rights under section 85(4).

The effect in relation to your question is that your tenant has lost her secure tenancy and thereby the right to buy.

She has paid off the arrears and cannot therefore use section 85(2) to postpone the date for possession. She is also precluded from using section 85(4) to rescind the order because, although she has paid off the arrears now, she was in breach of the order before doing so.

So, how to deal with her? First of all, she must not be recognised as a tenant in any way, shape or form. In the Swindon case, the resident was saved because, when he paid off the arrears, he was thereafter treated as a tenant by the council – which, according to the Court of Appeal, effectively created a new secure tenancy.

In your case, assuming this has not happened, possession proceedings can be taken against the woman on the basis that she is a former tenant who has no right to reside in the property.

But if you have treated her as a tenant since she paid off the arrears (by accepting rent, for instance) there is a distinct possibility, following the example of the Swindon case, that she has a new secure tenancy.
Nick Billingham, Partner and head of housing management litigation at law firm Devonshires