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When can I get possession? Can I get it forthwith?

Cecily Crampin and Thomas Rothwell consider the circumstances in which it is possible to obtain an order for possession forthwith by reference to the recent decision in Axnoller Events Ltd v Brake [2022] EWHC 459 (Ch)

Possession claims come in many kinds: they can be brought in trespass, under the Housing Act 1988, or in reliance on a mortgage, for example. Although such claims must all be commenced under the same procedural regime, namely CPR Part 55, the source of the right to possession, and any applicable statutory regime, affects each aspect of the claim, including the date for possession to be delivered if an order is obtained. The recent decision of HHJ Matthews (sitting as a Judge of the High Court) in the long-running case of Axnoller Events Ltd v Brake [2022] EWHC 459 (Ch) discusses the law relating to the date on which possession must be given. Though the precise basis of the court’s powers to delay the date for possession remains obscure in certain cases, it is a useful summary.

In Axnoller, a possession order was obtained after the termination of a bare licence. The Claimant sought an order for possession forthwith. The Brakes wanted further time and relied on, amongst other things, illness, the difficulty of obtaining alternative accommodation, and the length of time – namely 18 years – that they had lived at the relevant property. As the judge noted, these are all reasons which might be relevant if the court had the power to grant further time for the delivery of possession. The issue, however, was whether the law gave the court that power in this case.

Historically, the law made a distinction between two types of defendant, albeit each were to be treated as trespassers. The first was a claim for possession against squatters, that is, trespassers who never had any right to possession or occupation of the land; the second was a claim against someone who had originally enjoyed a right to be on the land but whose right to be there had subsequently been terminated. As set out in the judgment, it was in the first type of case that, historically, a right to possession forthwith was available (see also the historical discussion in McPhail v Persons Unknown [1973] Ch 447).

To a great extent, that original common law distinction has now been echoed in the various statutory regimes which regulate the different types of possession claim. Various statutes permit or require the court to extend time for the delivery of possession: for example, s9 of the Housing Act 1988, which relates to possession orders made in respect of rented residential premises on discretionary grounds, s138 of the County Courts Act 1984 which requires the court to give at least 28 days for repayment in claims for forfeiture for non-payment of rent, or, s36 of the Administration of Justice Act 1970, which is the relevant power when possession is sought in respect of mortgaged residential property.

There is, however, no such statutory regime applicable to trespass claims against occupiers who have entered and remained on the land without permission. Despite some judicial views to the contrary, it is now also clear that reliance on Article 8 of the ECHR does not provide such a power: Malik v Fassenfelt [2013] EWCA Civ 798, and McDonald v McDonald [2017] AC 273, SC.

Moreover, s89 of the Housing Act 1980, which limits the court’s power to extend the date for possession save in cases such as mortgage possession claims and those in which the court has power to make a possession order only where it is reasonable to do so (see, for example, the Housing Act 1988 where possession is sought on grounds 9 to 17), cannot be relied on to extend time for possession. It is a section which limits the court’s power where it has already been given a power to make a possession order taking effect on a date later than forthwith; it does not give the court a power to extend the date: Boyland & Son Ltd v Rand [2006] EWCA Civ 1860. Thus in a “pure” trespass case the court must make an order for possession forthwith unless the claimant agrees otherwise.

What about a claim like this one, where the defendants were in unlawful occupation after the termination of a bare licence? In McPhail v Persons Unknown, the court distinguished the two situations – trespass and holding over – in concluding that in a trespass claim where the occupier entered and remained without permission, possession must be ordered forthwith. The position regarding tenants who were trespassing by holding over after the termination of the tenancy, however, was different. That conclusion was reached by reference to s138 of the County Courts Act 1888 which gave the court a power to delay possession in claims for possession of small tenements (where the rent is only £50 a year and the tenancy without fine or premium). Though that section had been repealed by the County Courts Act 1934, the 1934 Act was a consolidating Act and thus did not remove the previous existing power. Likewise, the Protection from Eviction Act 1964 conferred such a power and, on its repeal by the Rent Act 1965, the court’s power to postpone possession was not lost.

Furthermore, there appears to be (or to have been) a power to postpone possession independent of the statutes discussed in McPhail v Persons Unknown, including in licence cases. Possession was postponed, for example, in  Jones v Savery [1951] 1 All ER 820 and Air Ministry v Harris [1951] 1 All ER 862. Indeed, it seems well settled that the court does have some power to postpone when making a possession order, even without an express statutory provision. After all, the court has no express power to postpone the date for possession when an order is made on mandatory grounds under the Housing Act 1988, but it is not doubted that s89 of the Housing Act 1980 applies to limit possession orders to 14 days for possession save in cases of exceptional hardship. That, it is suggested, must be because the court derives  power from some other source to postpone possession in those cases.

Despite the comments in McPhail v Persons Unknown (which were not expressly discussed in the Axnoller decision), HHJ Matthews concluded that possession had to be ordered forthwith because there was no statute giving it a power to extend time for possession in a licence termination case, and because, in a licence case, the occupier has never had legal possession of land (although this distinction does not seem obviously relevant). In any event, even if s89 of the Housing Act 1980 were indeed to apply, the court could make a forthwith order. Moreover, the court also concluded, even if it were possible to extend time for possession on the basis of exceptional hardship, the Brakes’ difficulties were not sufficiently exceptional to warrant a longer period for possession, and by the date the order was made, 14 days had in any event elapsed since the date the judge had circulated his draft judgment indicating he would make an order for possession.

The above analysis serves to emphasise that, in each type of possession claim, one must be clear what the basis for possession is, and what statutes (if any) regulate that claim. It is from that analysis that issues such as whether the court has a power to extend the date for possession can be answered. Although the decision in Axnoller will no doubt assist claimants in the county court in shortening the time afforded for former licensees to deliver up possession, the question as to the precise circumstances in which it will be appropriate to make a possession order forthwith remains an open one.

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