Tolerated Trespassers - case law update
Introduction
What is a tolerated trespasser? A secure tenant becomes a tolerated trespasser if he or she breaches the terms of a suspended possession order but the Landlord does not then evict the former tenant from the property
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Lambeth LBC and Hyde Southbank Ltd v O'Kane; Helena Housing Ltd v Pinder & Others [2005] is the latest in a long line of decisions dealing with the legal status of tolerated trespassers.
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A tolerated trespasser enjoys none of the rights of a tenant and has no security of tenure. Once a person becomes a tolerated trespasser neither party can rely on the terms of the former tenancy - as the tenancy has come to an end the occupant has no right to remain in occupation at all. However, he or she cannot be evicted otherwise than by the issue of a warrant of possession by reason of the provisions of the Protection from Eviction Act 1977. It is often the case that an application to suspend a warrant may amount to (or be made in conjunction with) an application to revive the tenancy (under Section 85 Housing Act 1985 for secure tenancies, and Section 9 Housing Act 1988).
Case Law Update
O'Kane was essentially an attempt by the tenant to get around the tolerated trespasser principles and claim that a new tenancy had been created, or the old tenancy had been automatically revived. However, the court decided that the former landlord's acts of increasing the 'rent' and granting a decorating allowance were only indications of the former landlord's continuing intention not to evict the tenant, or as a desire to maintain the property, and were not sufficient to create a new tenancy or revive the old.
As with prior cases, it was held that when a tenant breaches the terms of a suspended possession order, and so becomes a tolerated trespasser, the landlord cannot waive the breaches to automatically revive the original tenancy. A secure tenancy can only be revived in the following circumstances:
- By the express grant of a new tenancy;
- If the Court considers the actions of both parties are such that a new tenancy is intended; or
- If the Court sees fit to discharge the order.
Ashfords has a specialist housing team, who would be happy to provide any assistance :
T: 01392 33 4114
E: housing@ashfords.co.uk
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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