Musing over the Court of Appeal judgment ([2007] EWCA Civ 236) today, it struck me that the case does something rather dramatic to the issue of tolerated trespassers, extending the thrust of Swindon v Aston [2003] HLR 610.
What we knew from Swindon v Aston was that a tolerated trespasser could not apply to the Court under s.85 to vary the Possession Order when all the arrears (and the other requirements of the possession order) had been discharged. But the presumption was that the occupier remained as a tolerated trespasser. There was no revival of tenancy nor was a new tenancy spontaneously generated (Marshall v Bradford). The status of the occupier was then dependant on the landlord granting a new tenancy (explicitly or implicitly by treatment).
Not a happy situation at all. But it may have just got worse. L&Q -v- Ansell appears to state that, once the arrears and costs set out in the Possession Order have been paid, the occupier ceases to be a ‘tolerated trespasser’ in the sense of Burrows because their occupation is no longer subject to s.85 Housing Act 1985 - either in terms of execution of the order or possible application for variation of the order.
The conclusion offered is that the occupier becomes a bare trespasser, subject to a claim for possession without defence, as was made in Ansell.
If the terms of the Suspended Possession Order have not been complied with, (and they rarely are as all it takes is one missed housing benefit payment, or one missed payment by the occupant), then an application to discharge or rescind the Order under s.85(4) is not available.
So, if an application to postpone (if the order has not been complied with) the date of possession is not made before the arrears and Court costs are paid off, the erstwhile tenant come tolerated trespasser is screwed and is now just a bare trespasser.
So the possible upshot is, if the ex-tenant has not fully complied with the Suspended Possession Order, but has fully discharged the arrears and court costs, and if they have not made an application to vary the Order, s/he not only doesn’t get a new tenancy but loses the protection of s.85 in terms of staying eviction. S/he could face a possession claim for which they would, as a bare trespasser, have no defence.
This one had really better go to the House of Lords, but hopefully not with the same legal team for the appellant, who seem to have made something of a unnecessary balls-up in not appealing the County Court finding on the unavailability of s.85 powers at least as an alternative.
Of course, none of this applies (as yet) to Postponed Possession Orders in the form N28A.
Article Series - Tolerated Trespassers
- Tolerated Trespassers - the aftermath
- Tolerated trespassers: A Luta Continua
- Postponing Possession. Are you now and have you always been a tenant?
- Assured trespassers?
- Assured tenant or trespasser? The waiting begins.
- Postponed assured trespassers verdict soon(ish).
- Permanent trespassers and enforceable possession orders.
- More on London & Quadrant v Ansell
- White v Knowsley - Court of Appeal Judgment
- Reincarnation of Tenancy?
- S.85 Application Randomness
- Permanent trespassers - a fan letter
- Payne-less
- Post mortem revival of tenancy
- When does enforceability end?
ta for the analysis. my brain’s melting under the strain of trying to figure out the issues myself.
I find the whole area a cause for concern.
By missing one payment the tenant (former) has lost their security of tenure. This leaving them with virtually no rights.
I am of interest to establish if under the rent arrears protocol,
How many tenants are fully explained the terms of being a tolerated trespasser or on their position once a payment has been missed or indeed their understanding once the debt is believed to be paid off.
Looking at one law firms definition,
“If the landlord is aware that a tenant has difficulty in reading or understanding information, the landlord should take “reasonable steps” to ensure that the tenant understands any information given. This may include a face to face interview, which should be noted in writing, or the provision of an interpreter, where appropriate”
As the vast number of tenants are not legally trained one can imagine they would struggle to understand the information given to them. Therefore if the RSL cannot demonstrate that they have taken “reasonable steps” to help give the tenant a full understanding. Including advising the tenant to reinstate the tenancy via the court are they in breach of this protocol?
If so does this give the judge power to strike out the eviction?
I hope someone can help
Steve H
Steve,
If a Suspended Possession Order was made, at least between 2001 and about July 2006, then the occupier has already lost security of tenure and is no longer a tenant but a tolerated trespasser as of the date for possession given in the Order, typically about 4 weeks after the Order. For Suspended Orders before 2001, the situation depends on the exact wording of the Order.
If a Postponed Possession Order was made, after July 2006, then it is likely that the tenant remains the tenant, with security, until the landlord applies to the Court for a date of possession to be set and the Court sets the date, whether the tenant has missed a payment or two or not.
Unfortunately, the rent arrears protocol only applies to Claims for Possession, not to warrants of possession (the eviction warrant). The Courts that I know tend to grant a stay of eviction, or at least adjourn, if there are housing benefit issues, and take a dim view if the Council or RSL hasn’t tried to sort those issues out. However there is no requirement that the landlord explain tolerated trespasser status or applications to revive the tenancy that the Court can hold them to. The Court won’t/can’t set aside the eviction warrant on that basis.
In my experience, few housing officers properly understand tolerated trespasser status and applications to revive anyway. Tenants’ ignorance of their actual position is a very real problem, I agree. I also agree that social landlords should provide that information in a clear form. However this is an area of law that has seen some dramatic changes recently, so providing that information is not straightforward at present.
I also think the problem is that many district judges (not all of them though!) that hear these cases in big lists with 5 minutes allocated to each don’t know the different affects of possession orders made in the years ranging from 1982-2001. Also many first instant possession cases and warrant hearings are done DIY by housing officers. I realise this is a cost saving, but I think it will cause problems in the future unless the housing officer’s training is realistic and up to date.
Unfortunately the demand for housing and the rigid requirements imposed on social landlords by central government have not been accompanied by generous funding. The social housing system is changing and unless funding avenues alter I predict social landlords becoming more “hardline” with wayward tenants as they have no choice in the matter.
I have had to deal with all types of orders and the wording of the order determines the result. It is important because it affects the rights and liabilities of the landlord and the tenant. Housing officers do need more help with this.
As to the question posed by Steve H-social landlords mainly do their best, in my experince, to explain what rights the tenant and tolerated trespasser have or have lost. Lots of housing officers try their best under difficult conditions and many of the pro forma explanatory letters I have seen have obviously been run via the legal department. If they haven’t then they should be!
If there is a real communication barrier then extra efforts are taken to get the message across. But the housing officer has to know there is a problem; they are not telepathic. Unfortunately not all tenants are co-operative.
It is about finding a balance.
I suppose it depends on the DJ and the Court. I would have thought that any DJs in a Court with a susbtantial social housing case load would be pretty much up to speed, though granted I’ve come across some Deputy DJs who are less so.
I agree on training needs for housing officers. I’d be more sympathetic on the pressures on RSLs if I hadn’t seen the way in which some operate, although obviously there are major issues on the funding of social housing. The whole push for RSLs in the 80s and 90s was because the Government wanted this to become someone else’s problem.