England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ Hornby
sitting in the BOW COUNTY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 April 2005

Lady Justice Arden :

1. This is an appeal from the order from His Honour Judge Hornby sitting at Bow County Court whereby the judge made a possession order in respect of 4, Ronald Avenue, London E15 3AH ("the property"). The appellants are two of the sons of Mrs Margaret Hawkins, who occupied the property prior to her death on 27 July 1998. The third appellant is her grandson who lives with the other two appellants at the property. They assert that they are entitled to the tenancy as the successors to Mrs Hawkins by virtue of section 87 of the Housing Act 1985 ("the 1985 Act"). The judge found against them on this contention.
2. Section 87 provides:

"A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either

a) he is the tenant's spouse, or

b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;

unless, in either case, the tenant was himself a successor, as defined in section 88."

3. This appeal turns on the true construction of other provisions of the 1985 Act, namely sections 82 and 85. The late Mrs Hawkins was, at one stage at least, a person known in law as a tolerated trespasser, that is, she was a secure tenant against whom an immediate or suspended possession order had been made and who (in the case of a suspended possession order) had breached the terms of a suspended possession order but who (in either case) remained in possession with the approval of her landlord. The landlord in this case was the respondent, Newham Borough Council ("Newham"). If Mrs Hawkins retained the status of tolerated trespasser, or, indeed, if she was restored to the tenancy which she had before the breach of the suspended possession order, the appellants have no rights of succession. This is because, by virtue of section 87 of the 1985 Act, rights of succession do not arise unless the deceased was herself a tenant and even then do not arise if she was a tenant under a tenancy to which she had become entitled as a successor on the death of the previous tenant. Mrs Hawkins had originally become the tenant of the property on the death of her husband.
4. If, however, at some stage subsequent to the breach of the suspended possession order, Mrs Hawkins ceased to be a tolerated trespasser and became instead a tenant of Newham again under a fresh tenancy, the appellants would have rights of succession. So, essentially, this appeal concerns the question whether, in the events which happened, the judge ought to have found that Mrs Hawkins had acquired a new tenancy from the landlord.

Background

5. The facts are not in dispute and it is sufficient for my purpose to set out the background as set out in the judgment of the judge below: -

"3. The background history of the case is not really in dispute and, as a result, the evidence of only one witness, Mr Thornton, called by the claimants, was the subject of any detailed questioning. I shall come to his evidence shortly. In summary form the history, as I find it, is that on 16^th June 1975 the claimants granted a tenancy of the premises at number 4 Ronald Avenue to William Stanley Hawkins, the father of the first two defendants and the uncle of the third defendant.

4. Mr Hawkins lived at the premises with his wife until his death on 6^th May 1987. There is now no real dispute that upon his death his wife, Mrs Margaret Hawkins (whom I shall call hereafter "Mrs Hawkins"), became a successor tenant at the premises under section 87 of the Housing Act 1985, and she signed an acknowledgement to that effect on 27^th May 1987.

"5. It is common ground that by December 1989 she had fallen into arrears with her rent following the death of her husband. In a letter from a local housing officer, Mr Halligan, dated 8^th December 1989, the arrears are put at £1,600, although some credit adjustment of housing benefit was due. The Housing Management Accounts for the week 52/89 suggest that the arrears had risen to £2,005 by that stage (see page 428 of the trial bundle). On 17^th August 1990 the local authority served a Notice Seeking Possession when the arrears were said to be £1,857.49.

6. Proceedings for possession were commenced on 13^th December 1990 and on 17^th January 1991, an order for possession in 28 days was made by District Judge Davies suspended on payment of the current rent plus the sum of £5 per week off the arrears then standing at £1,503.51.

7. It is common ground that Mrs Hawkins breached the suspended order. Subsequently, there is at page 353 an undated note that Mrs Hawkins had been advised not to pay off the arrears "by obtaining any money from a loan shark", and that she had said "that her sister was going to give her £1,000".

8. At page 436 the Housing Management Account history shows that there was a reduction in the arrears at week 51/91 from £1,334.64 to £34.64 following a payment of £1,313.64. Mr Turner, who was called by the claimants, asserted that this could not have been a housing benefit payment as the figure should have appeared in the column "REB/BEM", and did not. A scrutiny of the accounts shows no housing benefit payments of substance being paid throughout, despite the note at page 348.

9. When they gave evidence, both the first and the second defendant did not believe that their mother could have possibly raised £1,300. Whilst this point is peripheral, on balance I suspect that it is more likely that the figure of £1,313.64 (at page 436) paid in week 51/91, would have come from some housing benefit contribution rather than Mrs Hawkins. Whatever the source of payment, it is clear that after this payment the arrears remained fairly constantly between zero and £100-odd until Mrs Hawkins' death. Whatever the position, it may well be that this substantial payment of £1,313 was triggered off by a letter dated 26^th February 1992 headed "Eviction alert" at page 354 where the claimants were threatening to enforce the possession order unless payments were made. Week 51/91 was said by counsel for the claimants to equate to March 1992, as week 1/92 at page 437 is said to commence 4^th April 2002. Certainly the writer of the letter dated 26^th February 1992, Jeremy Hutchins, appears to have been congratulated for his efforts (presumably by a senior officer) in securing the payment of £1,313 which tends to confirm that it was paid at some stage in March 1992.

10. By May 1993 it would appear from an account history dated 24^th May 1993 (to be found at page 355) that the rent account was satisfactory. Mr Thornton, who, as I have said was called by the claimants, told me that where a tenant cleared their account and it remained clear, despite a suspended possession order, the officers of the local authority would act "as though the original tenant was reinstated". If after an account had been kept clear for a sufficient time it again fell into arrears, Mr Turner indicated that the local authority was likely to start possession proceedings from scratch. He explained that different types of letter were sent to tenants and trespassers.

11. It was accepted that between 1992 and 1997 the account was satisfactory and that the letter, sent out on 1^st October 1997 addressed to Mrs Hawkins, was the type of letter sent to a tenant. This was the type of letter, he explained, that was at the lowest stage of action, normally preceding any notice seeking possession and that the housing officer was treating her as if she still had the original tenancy. He told me that the new agreement to pay some £5 per week off the arrears of £104 at the foot of the letter was typical of the type of arrangement with an existing tenant. He confirmed that ordinarily, if arrears were cleared after a suspended order, the suspended order would be treated as if it was no longer in force and the tenancy treated as if it was still the original tenancy. It was on this basis that the account was treated on 2^nd November 1998 following the death of Mrs Hawkins as if she was still the successor tenant."

The terms of the possession order

6. As explained by the judge, the possession order dated 17 January 1991 was a suspended possession order. The precise terms of the order were as follows:-

"possession in 28 days suspended on payment of current rent and £5 per week off arrears amounting to £1503.51 and costs of £85 to be added to the arrears. The first instalment to be paid within 28 days of this order. It is also ordered that there be a money judgment for the plaintiff for £1503.31 and £85 costs at £5 per week."

7. Accordingly, and perhaps unusually, the possession order in this case contained no provision for bringing the order to an end once the arrears at any point in time were paid off in full. It could only be discharged by an order of the court under section 85(4) of the 1985 Act. I next turn to the relevant statutory framework, namely section 82 and 85 of the 1985 Act.

Sections 82 and 85 of the 1985 Act

8. Section 82 of the 1985 Act provides in the material part as follows; -

"(1) A secure tenancy which is either

(a) a weekly or other periodic tenancy, or

(b) a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under subsection (3).

(2) Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order."

9. Section 85 of the 1985 Act provides in material part as follows:-

"(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any grounds set out in Part 1 or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such periods or periods as it thinks fit.

(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession,

(c) for such period or periods as the court thinks fit.

(3) On such an adjournment, stay, suspension or postponement the court

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit.

(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession."

The judgment below

10. I have set out the facts. The judge then had to apply the law to the facts. The judge worked carefully through the submissions made to him. He noted that the effect of section 82 (2) of the 1985 Act was that Mrs Hawkins's tenancy came to an end 28 days after she breached the terms of the suspended possession order.
11. Mr Sylvester Carrott, for the appellants before the judge and in this court, submitted to the judge that although the tenancy ended on that date it was open to Mrs Hawkins to apply under section 85(4) of the 1985 Act for a discharge or rescission of that order if the conditions were complied with. Mr Carrott did not submit to the judge that Mrs Hawkins could not have made an application under section 85(4). The judge doubted whether it was correct to make this concession by implication. He expressed the view that it was at least arguable that a tenant who had breached the conditions of a suspended order was not able to apply under section 85(4) because he might not be able to satisfy the primary requirement, that is, that he had complied with the conditions of the order. The judge noted, however, that a tenant who had not been evicted could apply under section 85(2) to postpone the date of possession, and that, upon such postponement, the secure tenancy would be revived because "the date on which the tenant is to give up possession" would not have arisen and thus the tenancy would not have ended: Burrows v Brent London Borough Council [1996] 1 WLR 1448.
12. Mr Carrott further submitted to the judge that the conduct of both parties was much more consistent with an agreement for a new tenancy than a secure tenancy in limbo and that, as Newham had treated Mrs Hawkins as if she were a tenant, the court should conclude that a new tenancy must have been granted even though Mrs Hawkins had not obtained an order reviving her original tenancy.
13. The judge noted the submission for Newham that Mrs Hawkins remained in law a tolerated trespasser with a right to revive her original tenancy. He noted that in the Burrows case, Lord Browne-Wilkinson, with whom the other members of the House agreed (although Lord Jauncey also gave a separate concurring speech), held that:

"In the absence of special circumstances, an agreement by a landlord not to enforce strictly an order for possession, whether conditional or unconditional does not create a new secure tenancy or licence."

14. The judge accepted that there were no special circumstances in the present case. He found that as a fact that Newham neither intended to create nor did create a new tenancy or licence. Accordingly the judge concluded that upon her death Mrs Hawkins occupied the property either as a tolerated trespasser or, if Newham waived her breaches of the suspended possession order, under her original secure tenancy. On that basis, the appellants could not succeed to her tenancy.

Submissions before this court

15. Mr Carrott repeats his arguments before the judge. He submits that, as Mrs Hawkins' tenancy had terminated on the breach by her of the suspended possession order, it could not be revived by agreement between her and Newham. An application to the court would be needed. In support of this submission he relies upon Marshall v Bradford MDC [2001] HLR 428 and Lambeth LBC v Rogers (1999) 32 HLR 361.
16. Mr Carrott submits that the court had no jurisdiction under section 85(4) to discharge or rescind the possession order since Mrs Hawkins could not show that she had complied with the conditions in it. In support of this submission, he relies on Swindon BC v Aston [2003] HLR 610. In that case, Pumfrey J, with whom Schiemann and Jonathan Parker LJJ agreed, held as follows:

"But it seems to me that an application under s.85(4) is precluded, since the conditions attached to the 1991 order were not complied with. In Marshall v Bradford Metropolitan Council [2001] EWCA Civ 594; [2002] HLR 22 (P48), Chadwick LJ with whom Schiemann LJ and Sir Christopher Staughton agreed, decided that the reference to "conditions" in s.85(4) was a reference to the conditions (as varied from time to time under s.85(3)) upon which the order for possession was suspended."

17. Mr Carrott submits that there could be no waiver by Newham of the breaches of the suspended possession order by Mrs Hawkins because there had been no communication of any waiver by Newham. Mr Carrott submits that it follows that the parties must have agreed to create a new tenancy. Mr Carrott also submits that there can be no waiver of a notice to quit. On his submission, what happened in this case was that there is a grant of a new tenancy.
18. Mr Carrott submits that, if the landlord takes no action in relation to a breach of a suspended possession order, it is estopped from taking action. However, estoppel does not result in the creation of a new tenancy.
19. Mr Carrott submits that it would not be possible for Mrs Hawkins to have sought a deferral of the suspended possession order and then apply later for discharge of that order. He submits that it is most unlikely that Parliament could have intended that two such applications should be made.
20. Mr Carrott submits that a letter of 1 February 1997 shows that Newham started their procedures for possession over again. In other words it acted as if the possession order was no longer in force and as if Mrs Hawkins was a secure tenant. On his submission, Swindon BC v Aston shows that, if the landlord and the former tenant cannot revive the old tenancy, they must have agreed to a new tenancy.
21. Miss Artesi, for Newham, submits that for the appellants to succeed there would have to be a grant of a new tenancy as a result of waiver or as a result of the intention to create such a tenancy. She accepts that in the normal case a tenancy is established where it is shown that the putative tenant has exclusive occupation of the premises, pays rent or a premium and has occupation for a term (see Street v Mountford [1985] AC 809). However this test does not apply in special circumstances. Miss Artesi submits that special circumstances exist in the secure tenancy regime: see the Burrows case above.
22. The possession order in this case continued in force even when the arrears were paid off: it would have been different if it had contained a proviso, such as the possession order in the Marshall case had contained, providing that the order was to cease to have effect on payment of the arrears.
23. Miss Artesi submits that the use of the word 'rent' in the Newham's letter of 1 October 1997 was not sufficient to create the implication of a new tenancy. Mrs Hawkins was called a tenant but in reality she was a tolerated trespasser. Miss Artesi submits that the appellants cannot show that waiver of the breaches of the suspended possession order could not revive the tenancy, or that the landlord had an intention to create a new tenancy. She submits for there to have been a new tenancy, there would have to have been a variation of the terms of the original tenancy. In this case, no new tenancy terms were given.
24. Miss Artesi submits that in the reported authorities there is only once instance of the courts having found a new tenancy was granted and that is Swindon BC v Aston. She submits that the facts of that case were exceptional. There was a secure tenancy and a suspended possession order with which the tenant did not comply. The landlord was subject to a local authority reorganisation. It offered a new tenancy agreement to the former tenant. It gave notice of increased rent. It gave notice of different terms and indeed, in seeking possession a second time, it relied on a breach of a new term of their contractual relationship with the tenant. The new term concerned the maintenance by the tenant of his garden.
25. In addition, in the Swindon case, all the arrears had been paid off so the order ceased to be enforceable. In the present case, Mrs Hawkins could have gone back to the court under section 85(2) of the 1985 Act. Moreover Mrs Hawkins was excluded from increases in rent. When Newham gave notice of increase in rent, the notice contained the following legend: "If an outright possession order has been granted by the County Court against you and has taken effect or you have breached a suspended possession order, then the basic rent does not apply to you and the figure set out in this letter is the revised mesne profit charge on the property." Accordingly Newham did not treat tolerated trespassers as persons liable to pay an increased rent.
26. Miss Artesi also submits that the fact that the local authority institutes fresh proceedings does not imply the grant of a new tenancy. There can be more than one possession order in respect of any property.
27. Miss Artesi submits that the courts recognise that parties can make an agreement to avoid the need to go back to the court. If they had to go back to the court, the court lists would be clogged. She relies on the judgment of Mummery LJ in the Rogers case at 369-370.
28. Miss Artesi further submits that, for the purposes of section 85(4), it is only necessary to show compliance with 'agreed conditions'. In this respect she relies on the speech of Lord Browne-Wilkinson in the Burrows case.
29. In reply, Mr Carrott submits that, in the present case, the possession order subsisted only as long as there were arrears of rent and outstanding costs. However the appellants have not raised that point in their notice of appeal. He submits that, as Mrs Hawkins could not apply under section 85(2) or section 85(4) of the 1985 Act, there was no agreement referable to the acts of forbearance. Accordingly he submits that this case is indistinguishable from Swindon BC v Ashton.
30. Mr Carrott submits that this case raises an important point. If a new tenancy did not arise on the facts of this case, it would on his submission be difficult for one ever to arise. He submits that these cases are very common.

Conclusions

31. As I explained at the outset of this judgment, the appellants cannot succeed unless they can show that at the date of her death Mrs Hawkins had been granted a tenancy in her own right by Newham. By virtue of section 87 of the 1985 Act, the rights of succession on which the appellants rely do not arise if Mrs Hawkins was then in occupation either as a tolerated trespasser or as a successor to the tenancy previously vested in Mr Hawkins.
32. Immediately prior to the making of the possession order on 17 January 1991, Mrs Hawkins' status as a tenant was certainly in the latter capacity, namely as successor to Mr Hawkins. It is common ground that Mrs Hawkins thereafter became a tolerated trespasser when she breached the terms of the suspended possession order: Thompson v Elmbridge [1987] 1 WLR 1425.
33. Very many tenants today in the public sector are tolerated trespassers. As explained above, this means that a possession order has been made against them, or, if a possession order was made against them suspended on terms, those terms have been breached. If this happens, but nonetheless the landlord permits them to remain in occupation, they are termed "tolerated trespassers". This phrase was first used in the Burrows case. The tenancy which the tolerated trespasser previously held has terminated. The tenant and landlord have respectively no rights or obligations under that tenancy. Their respective rights and obligations have to be founded in some other agreement, express or implied, unless the previous tenancy is revived.
34. However, the harsh effect of termination of a secure tenancy pursuant to a possession order is modified by section 85. Section 85 provides in effect that a possession order can be varied and revoked. Moreover, it can be so varied or revoked even if it was suspended on terms and those terms had been breached. If a breach occurs, the tenancy can be revived retrospectively. Furthermore, under section 85(4), a tolerated trespasser who satisfies the conditions in that subsection may also apply to have the possession order discharged. That too will revive the tenancy retrospectively. The opportunity to apply to the court under section 85(2) or (4) is not lost until the possession order is executed. The propositions are established by the Burrows case, discussed further below.
35. Accordingly, when a person remains in possession of demised premises after the making of a possession order, or after a suspended possession order has been breached, he may, depending on the facts, be either a tolerated trespasser or, if the date for possession has been postponed, or the possession order has been revoked, be a tenant under the original tenancy once more. Alternatively, if the parties have agreed to a new tenancy, he may be a tenant under that new agreement.
36. In the Burrows case, Lord Browne-Wilkinson stated that, until a possession order was executed, the court could by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which had already been terminated. Lord Browne-Wilkinson explained that, in practice, landlords may often wish to extend an indulgence to a tenant who, for instance, has lost his job, and who has failed to pay rent and is in breach of a suspended possession order. Lord Browne-Wilkinson held that Parliament could not have intended that, in that situation, the mere extension of such indulgence should lead to the creation of a new secure tenancy. He continued:

"What, then, is the correct legal analysis? I start from the proposition that where a former tenant is by agreement allowed to remain in possession of the demised property after the termination of the tenancy, the question in each case is quo animo the parties have so acted: depending upon the circumstances, their conduct may give rise to a new tenancy, a licence or some other arrangement. In the present case, on 5 February 1992 the parties plainly did not intend to create a new tenancy or licence but only to defer the execution of the order so long as Miss Burrows complied with the agreed conditions. It cannot be right to impute to the parties an intention to create a legal relationship such as a secure tenancy or licence unless the legal structures within which they made their agreement force that conclusion.

A secure tenancy protected by Part IV of the Act of 1985 is not like an ordinary tenancy. It can only be terminated by an order of the court ordering possession to be given on a particular date or in a particular event. But even determination by order of the court is not final. Until the possession order is executed, the court can by variation of its order change the date on which possession is to be given and thereby revive a secure tenancy which has already been terminated. During the period between the date specified by the order for the giving of possession and the date on which the order is executed there is a period of limbo: the old tenancy has gone but may yet be revived by a further order of the court varying the date for possession. If the parties reach an agreement as to the continued occupation of the premises by the tenant during that limbo period, what intention is to be imputed to them?

In my judgment little guidance is to be obtained from the cases where a tenant holds over after the termination of an ordinary tenancy where there is no possibility that the expired tenancy can revive. The position in relation to secure tenancies is sui generis. In my judgment, the agreement can and should take effect in the way the parties intend, i.e. it is an agreement by the landlords that, upon the tenant complying with the agreed conditions, the landlords will forbear from executing the order, i.e. from taking the step which would finally put an end to the tenant's right to apply to the court for an order reviving the tenancy. There is no need to impute to the parties an intention to create a new tenancy or licence: the retention of possession and the payment of rent relate to occupation under the old tenancy which is in limbo but which may be revived. In these circumstances I think it is fair to characterise the former tenant as a trespasser whom the landlord has agreed not to evict - a "tolerated trespasser" - pending either the revival of the old tenancy or the breach of the agreed conditions.

Once the effect of section 85 is appreciated, the absurdities which led the Court of Appeal not to accept that Miss Burrows could be a tolerated trespasser disappear. Technically the old secure tenancy is, during the limbo period, no longer in existence and therefore neither the repairing covenants in the tenancy nor the Defective Premises Act 1972 apply. But the tenant can at any time apply to the court for an order varying the date on which possession is to be given and thereby retrospectively revive the old secure tenancy, together with its covenants. If the tenant has complied with the agreed conditions, there can be little doubt that the court would make the required order. Moreover, the tenant will not be a homeless person within section 58(2) of the Act of 1985 because the tenant will be occupying the residence by virtue of any "rule of law giving him the right to remain in occupation:" see section 58(2)(c). If the tenant were in breach of any of the covenants in the old secure tenancy, Brent could apply to vary the order so as retrospectively to revive the old tenancy together with its covenants.

Finally, there is a method (albeit a clumsy one) whereby the order for possession even if an immediate unconditional order, can be discharged or rescinded if so desired under section 85(4). The power in that subsection to discharge or rescind only arises "if the conditions are complied with," a requirement which cannot be satisfied in the case of an unconditional order. But there is no reason why the order cannot be discharged by consent or, if such consent is not forthcoming, by the court varying the original order so as to impose the agreed conditions and then discharging the varied order.

It was submitted that the fact that the tenancy was granted to Miss Burrows jointly with Mr. Allen whereas the agreement of 5 February 1992 was made with Miss Burrows alone, indicated that the agreement must have given rise to a new tenancy with Miss Burrows alone. Therefore there must be a new tenancy. However, since in my view on its proper analysis the arrangement contained in the agreement of 5 February 1992 gave rise to no new tenancy with anyone, that factor is irrelevant. I therefore reach the conclusion that, in the absence of special circumstances, an agreement by a landlord not to enforce strictly an order for possession, whether conditional or unconditional, does not create a new secure tenancy or licence under Part IV of Act of 1985.

As Brent, by making the agreement of 5 February 1992, did not grant a new tenancy or licence to Miss Burrows as from 12 February 1992. It follows that the possession order of 29 January 1992 was properly enforced. I would therefore reverse the decisions of the Court of Appeal and the trial judge and dismiss Miss Burrows's action."

37. For the reasons explained by Lord Browne-Wilkinson, a new tenancy will not generally arise from the fact that a tolerated trespasser remains in possession with the landlord's consent. Rather more is required to take such a case out of the everyday situation where landlords simply allow former tenants to remain in occupation if they make satisfactory payments and their occupation is otherwise satisfactory.
38. Applying the foregoing, it is in my judgment clear on the judge's findings that all that happened in the present case was that Newham, by accepting Mrs Hawkins' continued occupation in the way it did, agreed to forbear from enforcing the possession order so long as Mrs Hawkins' occupation was satisfactory to it and thereby precluded itself from objecting if she chose to apply to the court for a variation of the suspended possession order. There was no offer of new terms or demand for an increased rent which might have shown that the intention of the parties was to create a new tenancy. On the authorities, it was clearly open to Newham and Mrs Hawkins to agree, after the suspended possession order was breached, that Mrs Hawkins could continue to remain in occupation provided that she made satisfactory payments of rent thereafter.
39. The judge refers to Newham's letter of 1 October 1997, on which Mr Carrott relies. This was a letter inviting Mrs Hawkins to agree to make regular payments to reduce the arrears, which she agreed to do by countersigning the letter. The heading in the letter refers to "rent". However, read as a whole, the letter was not, in my judgment, on any view an offer by Newham to enter into a new tenancy agreement.
40. This is not a case where it was not open to the tolerated trespasser to make an application under section 82. She could have applied, for instance, for the order for possession to be postponed. If she had done that, her original tenancy would have revived. This is not therefore a case where the court is compelled to conclude that the acts of the parties could be referable only to an intention to create a new tenancy.
41. Mrs Hawkins could alternatively have applied under Section 85(4) for a discharge of the possession order but for this purpose she would have to have shown that she had complied with the conditions in the order other, than those with which Newham did not require compliance and which were removed by an order under section 85(2). In this case, however, I accept that the application may not have been successful, and that Newham may not have agreed to the discharge of the possession order on the facts of this case.
42. The facts of the Swindon case are exceptional for the reasons that Miss Artesi submits. In particular, the landlord sent the defendants in that case a new tenancy agreement. One of the issues in the possession proceedings was whether the tenant had been in breach of the terms of that agreement.
43. In the circumstances, there is no basis on which the judge in this case could have found that a new tenancy had arisen. Accordingly, the appellants are not entitled to remain in possession as successors to Mrs Hawkins. In the circumstances the appeal must be dismissed.
44. As to Mr Carrott's new argument on the terms of the suspended possession order, in my judgment this might well involve new investigation of the factual matrix surrounding the making of the possession order, and accordingly in my judgment it is too late for it to be raised now.
45. Newham entered a respondent's notice setting out various additional reasons for upholding the order of the judge. This notice must be allowed in so far as the additional reasons coincide with those, which I have given above.

Mr Justice Bennett:

46. I agree.

Lord Justice Auld:

47. I also agree.