Tolerated Trespassers – the aftermath

[Edit. As it turned out, this was part 1 of a continuing series. See the bottom of the post]

Little of this is likely to come as a surprise to anyone involved in housing law, but the after effects of Harlow DC v Hall [2006] EWCA Civ 156 rumble on. It is worth examining not only for the mixture of the good, the bad and the downright counter-intuitive involved, but also because there are so many people affected. Estimates vary, but it is likely to be tens of thousands.

To recap, Harlow v Hall decided that the usual suspended possession order, as given in form N28 since 2001, did not, as everyone involved had assumed, delay the date of possession by the landlord as long as the tenant kept to the conditions. Rather possession was given on the date stated in the order, but could not be enforced as long as the tenant met the conditions. At a stroke many thousands of people became tolerated trespassers, with all the repercussions on the landlord’s repairing covenants, disrepair claims etc., not to mention tenant’s covenants, statutory rent rises, succession rights and more – see para 34 of Bristol v Hassan, below.

My usual courts promptly [within four weeks] had meetings of their Judges to come up with an interim form of order while awaiting the DCA’s alternative. My usual courts see a hell of a lot of possession claims and have a good idea of the problems. Public suggestions came from other interested parties, including the LAPG.

Fortunately, the Court of Appeal worked things out pretty quickly and, in Bristol City Council v. Hassan & Glastonbury gave its view on the preferred form of ‘Postponed Possession Order’. It is worth noting that the LAPG version put forward by Jan Luba QC won out. In this version, the date of possession is postponed indefinitely and it requires application by the landlord to determine the date of possession and the tenant be given 14 days notice of the landlord’s intention to do so, with the tenant’s response to be sent to the Court with the application, although no further hearing is required.

That ‘required’ is interesting. The landlord can make a ‘without notice’ application, to be sure. We’ll see how this plays out, because a response or challenge to the application is certainly not ruled out. See para 39 for the full recommended form of order.

This is broadly good, I think. It certainly makes PPOs clearer and more in line with what was generally understood to be the purpose of the SPO.

However, it leaves the status of existing tolerated trespassers, whose numbers were dramatically swelled by Harlow v Hall, in a mess. Which is where the counter-intuitive moment comes in. Surely, one would think, once the rent arrears have been paid off (the usual reason for an SPO, although anti-social behaviour is on the increase – another post, I think), it ought to be straightforward to rescue the tenancy. Nope. Marshall v Bradford MDC means that the easiest way, which is via an s.85 application to further postpone the date of possession, isn’t available as there is no longer any basis for the date of possession to be postponed.

So, if you are a tolerated trespasser, don’t pay off the rent arrears until you have made a successful application under s.85 Housing Act 1985 to postpone the date of possession, hopefully indefinitely, so that your tenancy will exist and survive paying off the arrears.

Now, on a purely practical basis, who the hell is going to help tens of thousands of tolerated trespassers make s.85 applications? Is public funding even available to make such an application as a freestanding action? (I honestly don’t know.) Have the Courts got time? The prospective clients certainly aren’t going to do it themselves. Local authorities seem to be taking varying positions on tolerated trespassers, particularly in regard to repairs. Some are using it to cut down to the ‘habitable’ minimum, others carry on as usual. But this is neither an acceptable nor fair situation.

One response might be to try to include postponing the date of possession in other draft orders on the back of other applications, say where a stay of warrant of possession is being agreed. Worth a try, given the argument that the effect of N28 was clearly not intended, by the parties or the District/Circuit judges.

But Harlow v Hall isn’t over yet, by any means. I fear that Tessa Shepperson’s suggestion of the end of the tolerated trespasser is rather rosy. Granted the new order should reduce those accidentally falling into tolerated trespasser status through the inevitable housing benefit cock-ups. But, not only are there many thousands left in existence, but once the date of possession has been determined under Bristol v Hassan, the occupant’s status is…?

Posted in Housing law - All, secure-tenancy, Tolerated trespasser and tagged , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

7 Comments

  1. Posted 20/06/2006 at 8:37 pm | link to comment

    Thanks for the mention of my blog entry. You’re probably right about the over optimism, so I have changed the title and put a question mark at the end. Subtle but significant.

  2. olamide sanni
    Posted 20/10/2006 at 1:27 pm | link to comment

    What would be the potential effects of the Bristol CC cases on assured tenancies? Same as secure?

  3. Posted 20/10/2006 at 7:36 pm | link to comment

    A very good question (and one my server logs suggest that a number of Social Landlords are asking). I’ll be putting a new, if hardly authoritative, post about this up later today, But the short answer is a) no one knows and b) depends.

  4. simon muller
    Posted 05/09/2007 at 2:14 pm | link to comment

    me and my partner have been made tolerated trespassers, this is due to court costs in 2002 and have only contacted us now. They say we are under there control which is “council debt recovery” and at any moment can evict us. What does this mean and how do i approach it, also im not the tenant my fiancee is im classed as a lodger so would i be better to not pay get evicted and get a tenancy in my name for me, my fiancee and my four children, as we have been waiting nearly two years for a move if not longer out of our 1 bedroom flat. Please any advice would be great i really would like to battle this through court, as i have been lied to several times through out this period by council officals.

  5. Posted 05/09/2007 at 9:24 pm | link to comment

    I’m sorry but I can’t give advice on your specific situation, because, amongst other reasons, I am not insured to advise on this blog – so if I get it wrong, you have no come back at all.

    I also can’t advise because you haven’t given me enough information or the right kind of information.

    I strongly recommend that you contact a legal aid housing solicitor or advice centre, because this is a complex area, not straightforward at all. Call the Community Legal Service on 0845 345 4345 for advice and contact details for solicitors in your area – or use the link to the CLS at the top right of my blog.

    However, I can make some general comments. First, a tolerated trespasser is a Council or Housing Association tenant who had a suspended possession order made against them and either didn’t keep to the terms of the order or, if the order was made between 2001 and mid 2006, just because the order was made, even if the tenant followed the payments set out in the order exactly. The tenant becomes a tolerated trespasser from the date of possession in the Court order, regardless of whether anyone realised it at the time.

    Being a tolerated trespasser means the tenancy has ended. However, if the landlord moves to evict the ex-tenant, the tenant can usually apply to the court to have the eviction suspended.

    The tenant can also apply to the court to make changes to the original possession order to revive the tenancy as if it hadn’t ended. When and how this can be done is complicated – you need advice from a solicitor, but it is easiest if it is done before all the rent arrears and the court costs are paid.

    Being a tolerated trespasser means that most of the rights of a tenancy do not exist – for repairs, for transfers, right to buy and so on. So it is important. It also means the landlord can get a warrant of eviction without having to go through a claim for possession and a court hearing first.

    You suggest ‘not paying’. You need to be aware that if your fiancee and her household, including you, are evicted because of unpaid rent, arrears or court costs from the possession order, she (and possibly you) will probably be classed as ‘intentionally homeless’ by the council and they will very likely NOT rehouse the household.

    Again, from what I can make out of your situation, it is very important that you get full advice from a housing solicitor or an advice centre with specialist housing advisors. This is a complicated and changing area of law, and it is very easy to end up in a worse position by trying to do the right thing, if you don’t get advice.

  6. diane
    Posted 18/06/2008 at 5:35 pm | link to comment

    Hi,we stopped paying our rent on the advice from the c.a.b. as we were not getting the repairs done to our home that had been asked for snce 2004,In dec 2006 we were taken to court and given a suspended order and had to pay the arrears at an extra amount on top of our rent,we did this sticking to every payment but then the bank made an error one month and paid something else twice thus not leaving enough in the bank to pay the rent ,I rang the housing office we deal with and they said as we had proof from the bank this would be fine as long as we paid double the following month which we did.Now because we are a month in front with the rent and have still not had the repairs done I contacted the local labour government and had them fight our corner ,they have gotten environmental health involved who say the work must be carried our for the health of our 5 children,but then the housing ass we deal with came round to again assess the problem with surveyors and again tell us what we already knew needed to be done and then threw in oh we dont have to repair this as you are tolorated tresspassers and should have asked for your tenancy back within a month of the order being made but we were never told.This is out of order and they say they are doing us a favour by letting us stay here! the repairs sill remain undone to this day and my children are suffering,we are on the transfer list but the ass say they can stop us if they please,I work for an ass and they say if we are in front we should be granted a short hold tenancy for a year and if we keep to it then maybe reapply for an assured again but the ass we are with will not help as the repairs still need doing and they know they are in the wrong!
    Is there any advice you can give….Please I am at my whits end as they say they can kick us out on a seconds notice.

  7. Posted 18/06/2008 at 7:13 pm | link to comment

    Diane,

    I can’t give advice on people’s specific problems on this blog, I’m afraid. Your situation is not straightforward. I strongly suggest that you contact a specialist housing solicitor – try the link at the top right of this site if you are entitled to legal aid (you can check if you are at that link).

    However, I will say this. If the rent account is in credit, your landlord cannot evict you by relying on the suspended possession order for rent arrears. So they cannot ‘kick you out on a seconds notice’ for that reason. (There may be other issues involved. I can’t tell from what you say). There is legislation under way at the moment that may change your situation in the next year.

    I would be very, very surprised if a CAB had actually told you to withhold rent. If they did, it was very bad advice indeed. If they were going to give you this bad advice, they should in any case have told you to save up the unpaid rent so you could pay it when needed.

    I can’t tell whether you actually would have had a disrepair counterclaim to the possession claim – without more details on what the repair problems were, I don’t know whether you would have had grounds.

    Again, I strongly suggest you get advice from a housing specialist solicitor, who can look at all the relevant documents.

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