Tolerated Trespassers - The Confusion Continues
Introduction
The Court of Appeal has recently delivered another judgment concerning the problem of Suspended Possession Orders ("SPOs") and Tolerated Trespassers in the case of London and Quadrant Housing Trust -v- Ansell.
The facts of the case
Several years ago the Claimant housing association commenced possession proceedings against Ms Ansell, who was a secure tenant, on the grounds of rent arrears. In February 2001 a SPO was made, stating that:
1. "The court has decided that unless you make the payments as set out in paragraph 3 you must give the claimant possession... on 19 March 2001; ...
... 3. You must also pay to the Claimant the total amount of £1,169.15 by instalments of £2.65 per week in addition to the current rent... When you have paid the total amount mentioned the claimant will not be able to take any steps to evict you as a result of this order..."
The occupier remained in possession and breached the repayment terms of the Order. Both parties agreed that the effect of the SPO was that the occupier Defendant had become a tolerated trespasser. Eventually the judgment debt was paid off.
The Association subsequently issued new proceedings following reports of nuisance behaviour. The Association took the view the original SPO was no longer enforceable and therefore sought possession on the basis that the occupier was a trespasser.
The occupier contended that the Claimant should have issued a warrant in the original action (which would have enabled the occupier to seek a variation of the terms of the suspension under section 85) of the Act rather than issuing the new proceedings.
The Decision
Lord Justice Chadwick delivered the main judgment. He considered whether the Court could still exercise its powers under section 85 in respect of the SPO (powers which could even allow the tenancy to be revived). He held that as the Defendant had eventually paid all the monies due under that order it was no longer possible for the Claimant to issue a warrant (as the order expressly stated that once this was paid "...the claimant will not be able to take any steps to evict you as a result of this order...").
As the order could not be enforced, the Claimant could not apply for a warrant so it had to issue fresh proceedings to recover possession, as Ms Ansell was by then a tolerated trespasser. It was right to issue the proceedings as it had and it was entitled to possession.
Repercussions of the Judgment
The main repercussion of the judgment is that social housing providers have to look carefully at the case history before issuing proceedings to ensure that they do not embark on the wrong Court process.
If a tolerated trespasser breaches the repayment terms of their SPO before all monies due under the order have been paid, you should be requesting a warrant of possession rather than issue fresh proceedings. This will give the occupier a chance to make an application under s85 to suspend or stay execution of the warrant and postpone the date of possession but in that case it will also enable you to ask the Court to tighten up on the terms of the suspension.
However, if the SPO makes it clear that it will cease to have effect once the judgment debt is cleared, you will no longer be able to enforce the order against the tolerated trespasser. To recover possession you must issue new proceedings on the basis that the occupier is a trespasser. As a trespasser an occupier has only very limited options available in terms of putting together a successful defence.
Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.
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