Tolerated Trespass A Legal Anomaly

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Tolerated Trespass A Legal Anomaly

• Where We Are and How We Got There
• A Brief Overview
• By Mary Martil of Marsons Solicitors
• For CIH South East Region
• On 20th June 2008

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• How They Arose
• A judicial creation
• Arising out of the wording of the Housing Act
  1985
• Courts interpretation of the meaning of that
  wording in the context of the real world

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How They Arose

• Housing Act 1985
• s.82(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
• s85(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,
• for such a period or periods as the court thinks
  fit.

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How They Arose

• Burrows v Brent LBC 1996 1 WLR 1448 HL, Lord
  Browne-Wilkinson
• - The parties did not intend to create a new
  tenancybut only to defer execution of the order
  so long as Miss Burrows complied with the agreed
  conditions.
• - 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

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How They Arose Burrows v Brent

• The agreement can and should take effect in the
  way the parties intend i.e. it is an agreement by
  the landlord that, upon the tenant complying with
  the agreed conditions, the landlord will forbear
  from executing the order
• 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.

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Effects

• Loss of Tenants Rights
• Repairs
• Assignment/mutual exchange
• Succession
• Right to buy
• Consultation
• Absence of Tenants obligations

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Legal Conundrums

• When does a new tenancy arise?
• Burrows v Brent LBC 1996 cannot be right to
  impute to the parties an intention to create a
  legal relationship such as a secure
  tenancy.unless the legal structure within which
  they made their agreement forces that conclusion.

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Legal Conundrums When does a new tenancy arise?

• Swindon BC v Aston 2002 EWCA Civ 1850 the SPO
  contained a term that the judgement shall cease
  to be enforceable when the debt is satisfied, the
  debt had been paid, the order was no longer
  enforceable, nor was it possible for the old
  tenancy to be revived, subsequently, the occupier
  continued to pay the weekly charges, the landlord
  sent him notices of increase of rent, he was
  threatened with action for non-compliance with
  tenancy conditions and new terms and conditions
  were sent out to him.
• - Viewed objectively, the conduct of both
  Landlord and tenant was only sensibly referable
  to the existence of a new tenancy.

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Legal Conundrums When does a new tenancy arise?

• Newham LBC v Hawkins 2005 EWCA Civ 451
  following clearance of the arrears and continued
  dealings between the parties, would a new tenancy
  naturally be deemed to arise?
• - There was no term in the SPO to the effect
  that it would cease to be enforceable once the
  debt was paid, the order remained capable of
  being enforced, the original tenancy remained
  capable of being revived, there were no dealings
  that showed the parties had intended to create a
  new tenancy.

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Legal Conundrums When does a new tenancy arise?

• Lambeth LBC and HSH v OHara 2005 EWCA Civ 1010
  the arrears due under the order were not
  cleared, but the tolerated trespasser was sent
  various letters referring to rent, notice of
  variation of tenancy conditions and various
  notices of increase of rent, all standard
  documents sent to occupiers regardless of status.
  He was also paid a decoration allowance. Was
  that sufficient to create a new tenancy?

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Legal Conundrums

• Helena Housing Ltd v Pinder 2005 following a
  stock transfer, a rent card was sent to the
  tolerated trespasser. Was this sufficient to
  grant a new tenancy?

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Legal Conundrums When does a new tenancy arise?

• - No It is not enough that the facts are
  consistent with a new tenancy, they must actually
  force that conclusion. In both cases, the
  landlords conduct was consistent with an
  intention to increase mesne profits and show
  continued forbearance to a tolerated
  trespasser.

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Legal Conundrums

• When does the tenancy end?
• Upon the breach of the terms of the SPO?
• Upon the date for possession specified in the
  SPO?
• Harlow DC v Hall 2006 EWCA Civ 156
• Created 100,000s tolerated trespassers
• PPOs developed to avoid the problem

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Legal Conundrums

• Does it apply to assured tenancies?
• S82(2) Housing Act 1985 where the landlord
  obtains an order for 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
• No specific equivalent provision in the Housing
  Act 1985

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Legal Conundrums Does it apply to assured
tenancies?

• White v Knowsley Housing Trust 2007 EWCA Civ
  402
• Section 5(1) an assured tenancy cannot be
  brought to an end by a landlord except by
  obtaining an order of the court
• Section 9(3) on granting a stay or suspension,
  a court should impose conditions with regard to
  payment.. of arrears and rent or payments in
  respect of occupation after the termination of
  the tenancy (mesne profits)

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Legal Conundrums Does it apply to assured
tenancies?

• It would be inconsistent with the principles of
  the landlord and tenant law for a contractual
  tenancy to be said to continue after the tenant
  has lost the right to possession
• If the order specifies a date when the tenant is
  to give up possession, the tenancy must end on
  that date
• PPOs
• Appeal to House of Lords pending

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A Guide to Tolerated Trespassers
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Creating a Tolerated Trespasser

• Wording on court order
• Breach of SPO PO
• Information to Customers
• Breach letter

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What Tolerated Trespasser means in mhs

• Payments cannot be backdated
• Revival of Tenancy
• No Succession Right
• Repair Obligations

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Loss of Protected Status

• No Right to Buy
• Higher rent increases - 10 increases

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Impact of the Change

• Use and occupation charges only Mesne Profit
• Other tenancy breaches
• No intention of creating a new tenancy
  inadvertently

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Other Factors to Consider

• On clearance new Tenancy
• Assured Shorthold (periodic) Trial Tenancy
• Refusal to sign up

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Overview

• Impact on long term arrears cases
• Few revive via Court Process
• Numbers of Tolerated Trespassers

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Tolerated Trespass A Legal Anomaly

• Looking Ahead The Housing and Regeneration Bill

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The Housing and Regeneration Bill

• Lord Justice Buxton in White v Knowsley HT
  Those problems are a matter for law reformThe
  courts are not equipped for that task
• DCLG consultation paper August 2007
• Section 298 and Schedule 10 to the Housing and
  Regeneration Bill

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Phasing Out Tolerated Trespassers

• Possession orders made after commencement of the
  Act will not bring tenancies to an end
  tenancies will continue until eviction
• Tolerated trespassers who are occupying the
  property as their home will automatically be
  granted a new tenancy on the commencement of the
  Act

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Possession Orders Made After Commencement

• Amendment to HA 1985 (secure tenancies), HA 1988
  (assured and assured short hold tenancies), HA
  1996 (introductory and demoted tenancies)
• The tenancy cannot be brought to an end by the
  landlord except by obtaining an order for
  possession and the execution of that order
• The tenancy ends when the order is executed

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Exception

• If the possession order was made before the
  commencement date but, the tenancy has not yet
  ended pursuant to the order, the new provisions
  will apply.
• i.e. PPO cases where no date for possession yet
  fixed.

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New Tenancies Arising on Commencement

• A new tenancy will be treated as arising provided
• The property is the TTs only or principal home,
  and has been so since the original tenancy ended
• The former landlord is still entitled to let the
  property
• The parties have not already entered into a new
  tenancy

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Nature of the New Tenancy

• The new tenancy will be of the same type as the
  original tenancy
• It will have the same terms and conditions,
  subject to changes in rent/other terms and
  conditions.

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Nature of the New Tenancy

• Note that
• Arrears of charges due whilst a TT will be rent
  arrears under the new tenancy
• The possession order that ended the original
  tenancy, and any subsequent orders, will be
  treated, so far as practicable, as if they apply
  to the new tenancy
• The original tenancy and the new tenancy are to
  be treated as the same continuous tenancy for the
  purposes of succession and right to buy
  (qualification periods and discount).

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Additional Provisions

• In secure tenancy and assured tenancy cases, the
  court will have a wider power to discharge or
  rescind possession orders
• In some proceedings, including disrepair claims,
  the court will have the power to treat the
  original tenancy and the new tenancy as the same
  continuous tenancy.