As if to confirm that housing law is, well, complicated, there is a coda to the Supreme Court decision in Manchester City Council v Pinnock, which has led to a supplementary judgment being handed down. This deals with what order should be made and costs.

The first problem was that the parties couldn’t agree on the consequential order from Pinnock 1 – as you’ll recall, Mr Pinnock’s appeal of the possession order made against his demoted tenancy failed. The initial possession order was made on 22 December 2008, with possession to be given by 12 January 2009. Notice of appeal was served by 26 January 2009, as ordered by the first instance judge.

If the original possession order was found to take effect as from 12 January 2009, Mr P would have been occupying as a tolerated trespasser. He would be caught by the Housing and Regeneration Act in May 2009 and a new demoted (replacement) tenancy would have arisen. The Council had brought further proceedings, based on just that eventuality, but adjourned them. The Council argued that it would be against rational principle for them now to have to restart (or continue) proceedings against Mr P afresh. They argued that the Supreme Court Order should vary the date for possession in the original order to 21 May 2009, thus avoiding the creation of the new demoted tenancy.

Mr P took no issue with the merits of the Council’s position, but nargued that there was no jurisdiction to make such an order, even for the Supreme Court:

The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holman’s order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holman’s order in a way which would mean that, albeit retrospectively, it would conflict with that provision.

But nobody tells the Supreme Court they can’t do something (or at least not if they have an alternative route)

The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Council’s justified concerns which is not open to such objections.
We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011. The effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings. It will come to an end when possession is obtained against him pursuant to our order for possession.

On costs, the Council argued that it should have costs, having succeeded on the central point of the possession proceedings against Mr P.

Mr P argued “for an issue-based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court.”

The Court made no order as to costs on the appeals and the Council’s costs award in the County Court should stand.

The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and therefore the overall justice of the position. The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.

And that should be that.

This case is reported in the October 2010 ‘Recent Developments’ in Legal Action. It is an interesting case on the use of applications under Schedule 11, 21(3) Housing and Regeneration Act 2008 to have a period of tolerated trespasser-hood treated as a continuous tenancy with the replacement tenancy given on 20 May 2009 under the H&RA. This is for the purposes of a disrepair claim including a period prior to 20 May 2009.

Ms C had been a tolerated trespasser from about Feb 2001 following possession proceedings for rent arrears. In 2010, she brought a claim for disrepair and for specific performance, with an application under Schedule 11 for the tenancy to be treated as continuous.

At the application hearing, HHJ John Mitchell set out principles for considering such applications (although these are, of course, non binding, at least outside Clerkenwell). My commentary in square brackets:

• The burden of showing that the discretion under Schedule 11 should be exercised rests on the tenant [No surprise there. It does indeed.]
• The aim of the Court is produce a result which is fair to both parties [which one must presumably take to mean fair in terms of the history, not just present circumstance]
• The discretion should be exercised having regard to all the circumstances of the case including any benefit or prejudice to the parties in granting or refusing the application
• Regard should be had to the extent to which the parties believed or treated the original tenancy as having continued during the period of tolerated trespass, including the extent to which either party acted to their detriment.
• It would be unjust to refuse relief to a tenant in technical breach of a suspended possession order by missing a payment by a day but who thereafter for a number of years complied with the terms of the tenancy and discharged the arrears [Well, yes. So where does the boundary of this unjustness lie? Missed a few payments but made them up? Paid irregularly but cleared arrears? Paid every payment when due, but arrears not yet cleared? Or just the wholly technical and inadvertent breach?]
• It would be unjust to grant relief where the landlord allowed a vulnerable occupant to occupy the premises as a matter of grace for a limited period while s/he was attempting to find alternative accommodation but failing to make any payments on account of the occupation. [I'm struggling to see how this could fall under replacement tenancy/Schedule 11 terms anyway. Even if it did, the 'grace period' would surely have to be so short as to make a Schedule 11 application for the purposes of a disrepair claim a waste of time? Or am I wrong?]
• The importance of granting or refusing relief to the parties should be considered
• Regard should be had to the amount and merits of the claim [Fair enough, but is that the claim in total, or for the period of TT-dom only?]
• If the costs of defending the claim would be out of proportion to the amount claimed, or if the merits were slight, it may be unfair to allow the claim to proceed. [Slight merits, I can see. But if the claim has merits, then surely the costs of defending the claim are down to whether the Defendant behaves reasonably or not? It would be an unusual disrepair claim that meant that defending a claim, over the last 6 years at most, for some reason gave rise to exceptionally high but wholly merited costs of defending it.]
• There is a need to avoid protracted satellite litigation [Indeed. But what would that be - a s.85 application, on essentially the same discretion? But that is unlikely to be protracted, and has to be a viable alternative route to a Schedule 11 application.]
• The Court can impose conditions on the grant of relief, for example, by limiting the amount of damages which can be recovered. [I'm not sure where this discretion comes from - I can't see it in Schedule 11, where the discretion is simply to order that the tenancy should be treated as continuous, or not.]

In this case – where the use and occupation charges were identical to the rent, which [impliedly, surely] included an amount to fund repairs – it was fair to grant the application. However, the arrears remained high throughout, although reduced by £1000. It was therefore fair to limit the claim for damages to the amount of the arrears outstanding at 20 May 2009.

We need more details – Toby Vanhegan, for Ms C, if you are reading this, what were the levels of arrears and, crucially, did the limit on damages only apply to the claim for the period of TT-dom up to 20 May 2009? If it didn’t and covered the post May 2009 period, I would suggest that this was manifestly unfair and also beyond any discretion under HRA 2008, even though I’m not sure that there is such a discretion in any event. Contrast this decision with Litchmore v Lewisham, where no conditions were set.

My view is that the use and occupation charges being levied at the same level as rent, where the latter involves a repairing obligation is surely key. Not only are any arrears a continuing and enforceable debt, but payment of the mesne profits at that level means a windfall profit for landlords who did not carry out repairs they would otherwise have been obliged to do.

I would also point to certain passages of Austin v Southwark in the Supreme Court to the effect that the TT was a judicial disaster that should not have happened, and that mesne profits at the level of rent, without the corresponding repairing obligation, were strongly arguable as unfair (see Baroness Hale at 54).

Of course, if the limitation of the claim to the arrears at 20 May 2009 only applied to the claim up to 20 May, and there was a full claim for damages and specific performance for the period thereafter, then there is no effect on the viability of the disrepair claim, just a limit on the damages the tenant can recover. However, if this is an argument made by LLs elsewhere in future, it is clearly something any ex-TT claimant should be advised on.

Granted this is a County Court decision, but as it comes from a CJ, it will have continued effect in Clerkenwell and may be persuasive elsewhere. Views on this and in particular on the discretion to impose conditions such as limits on damages (and where such a discretion comes from) welcome…

[Edit: confirmed by Hardwicke Chambers as being Court of Appeal, permission by Rimer LJ]

What is at issue is whether a suspended possession order should be made when the rent arrears have been included in a debt relief order pursuant to the Insolvency Act.

The tenant apparently argued that “a ‘remedy in regard of debt’ in the terms of the Insolvency Act cannot include a suspended possession order as the purpose of an SPO is to enable payment of the arrears”. Further the existence of a debt relief order must be relevant to the question of whether it is reasonable to make a possession order in the first place. These were not arguments raised in Harlow v Hall, which should be distinguished on its own facts as:

• it is based on the concept of the tolerated trespasser which is no longer applicable
• the comments on a possession order post-bankruptcy were obiter
• Harlow v Hall pre-dated the rent arrears pre-action protocol

Obviously we like to know more about this case – transcript anyone?

It has been a long story for Mr Austin and a long, long, long story for the tolerated trespasser. But this Supreme Court judgment should be the last time the Supreme Court is troubled by the legacy of Thompson v Elmbridge Borough Council [1987] 1 WLR 1425 and Burrows v Brent London Borough Council [1996] 1 WLR 1448. Further, it is, in many ways, an epitaph for the ‘anomalous’, ‘dubious’, ‘oxymoronic’ concept of the tolerated trespasser – and ‘all of this nonsense’ could have been avoided (quotes from Baroness Hale, on which more below). This is a judgment worth reading in full, but I’ll do what I can.

Our report of the Court of Appeal judgment is here, but briefly the facts are that Barry Austin was the brother of the late Alan Austin, who was a Southwark secure tenant. In 1987 a suspended possession order was made against Alan Austin in the then form N28, ‘not to be enforced’ if arrears of £3192.96 were paid within 28 days. The order was breached, so on any evaluation, Alan Austin was a tolerated trespasser from 1987. Southwark did not enforce the Order and there was no indication that Alan had been informed that he was a tolerated trespasser then or subsequently. In 2003, on his account, Barry Austin moved in with his brother to care for him as he was by then seriously ill. In February 2005, Alan Austin died. In September 2006 Southwark served Notice to Quit on Barry Austin and then began possession proceedings in January 2007. It came as a complete surprise to Barry that there had been a possession order and certainly that his late brother was a tolerated trespasser.

Barry Austin applied to the County Court to be appointed to represent Alan’s estate in the 1986 possession proceedings under CPR 19.8 and, if appointed, to apply for an order under s.85(2)(b) Housing Act 1985 postponing the date of possession such that Alan’s tenancy would have existed at the date of his death and Barry would have, on his account, succeeded to the tenancy. The application failed at first instance, on appeal to the High Court and, as our previous report sets out, on appeal to the Court of Appeal. There were a number of issues on each appeal, but the principal issue was the Court of Appeal judgment in Brent London Borough Council v Knightley (1997) 29 HLR 857, that the right to apply for a postponement of an order for possession was not an interest in land capable of being inherited, and was therefore a personal right that ended with the death of the tenant/tolerated trespasser. Although Barry Austin had not alleged direct inheritance, but instead sought appointment for the estate of Alan Austin, Knightley was held to be fatal for that application and any arguments raised on ‘property’ under Article 1 Protocol 1 ECHR in its support.

So, to the Supreme Court.
Barry Austin raised as grounds of appeal:
i) a secure tenancy does not end on breach of a conditional suspended possession order but endures until the order for possession is executed. (The Knowsley argument, paralleling the finding on assured tenants on Knowsley Housing Trust v White, link to our report)
ii) Brent v Knightley was wrongly decided, such that the right to apply under s.85 Housing Act 1985 survived the (ex) tenant’s death
iii) Such a right to apply is a possession under article 1, Protocol 1 of the European Convention on Human Rights
iv) To hold that the right to apply did not survive death would be in breach of Art 1 Protocol 1
v) the deceased person had an interest in a claim for the purposes of CPR 19.8

Southwark maintained that Burrows v Brent and Brent v Knightley were rightly decided and that, for the reasons given in the Court of Appeal no right to apply arose and so no interest in a claim under CPR 19.8

Lord Hope’s lead judgment, with which Lords Brown and Kerr agree, is that LB Brent v Knightley was wrongly decided. The details of the reasoning are set out below. But what is remarkable is the assessment Lord Hope (and indeed Baroness Hale) make of the judgments in Thompson and Burrows.

On issue i) Lord Hope finds that the argument wholly revolves around the interpretation of s.82(2) Housing Act 1985, which as originally enacted read:

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.

Thompson and Burrows had found that this meant on the date specified for possession in the possession order, or as per Thompson, where there was a breach of the terms of the order suspending enforcement. As we all know, Harlow DC v Hall later meant that on the then wording of Form N28, the tenancy ended on the date of possession in the order regardless of breach of terms. However, in Knowsley v White, Lord Neuberger had taken the view, albeit obiter, that it was entirely possible for an alternative interpretation of s.82(2) to be made, such that the date the tenancy ended was the date ‘on which the tenant was to give up possession’, i.e. on enforcement, bringing it into line with the interpretation of Housing Act 1988 for assured tenants in that case. The House of Lords did not pursue this interpretation in Knowsley, largely because Counsel for all parties (including Jan Luba QC) submitted that the then Housing and Regeneration Act would remedy this issue via the replacement tenancy, and in view of the may thousands of cases that had already been based on Thompson et al.

Lord Hope is more than prepared to entertain Lord Neuberger’s view of s.82(2), noting that it is

a remarkable fact that a conclusion about the meaning of section 82(2) which, admittedly with the benefit of hindsight, is so obviously unsatisfactory and conceptually confusing should have been reached with so little reasoning. [para 20]

(that’s a lack of reasoning in Thompson and then in Burrows). In Thompson it was little more than a one sentence assertion and in Burrows there was no attempt at reasoning beyond noting the result in Thompson.

The context of s.82(2) in the Act tends to favour Lord Neuberger’s interpretation, in view, for instance of the continued right to buy under s.121 which only a secure tenant can have, s.118. However, the question then is should the Supreme Court hold Thompson and Burrows as wrongly decided?

At issue is the Practice Statement of 26 July 1966 on the then House of Lords overturning its own judgments. The Practice Statement remains relevant for the Supreme Court. In this case, Lord Reid’s observations in R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435 were pertinent:

I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act. … I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.

Not only was the decision in Thompson of long standing, and as such had been relied upon in many thousands of county court cases, but the Housing and Regeneration Act 2008 had substantially addressed the problems of the tolerated trespasser regime. Apart from the factual situation in this case, the only remaining effect of the tolerated trespasser period was the absence of liability on the landlord’s part for covenants – specifically the repairing covenant – during the period of tolerated trespasser status prior to the replacement tenancy. Parliament’s deliberate decision not to revive or retrospectively reinstate tenancies had to be respected. Lord Hope considered the evidence of the consultation process in this regard. To declare Thompson wrongly decided would be to undo the will of Parliament in the HRA 2008.

On issue ii) there is nothing is s.85 Housing Act 1985 that prevents the right to apply from being ‘transmitted’. The right is conferred by statute and so statute governs its limitations, rather than common law.

In Knightley, Aldous LJ in the High Court had found the right was ‘incapable of being inherited’, This was not the same as ‘incapable of being transmitted’ as Longmore LJ had mistakenly found in the Court of Appeal. The distinction is that between common law and statute. Further:

Addressing himself, in para 54, to the terms of the statute, Longmore LJ said that Parliament plainly intended that the person who would otherwise be entitled to a secure tenancy if it had been revived should not be able to revive it in his or her own name. To hold that the deceased’s estate can apply to revive it for the purpose of enabling that person to obtain a secure tenancy would be to circumvent, if not flout, that intention by means of a legal device. I have to confess that I do not follow this reasoning. It seems to confuse the provisions about succession on the death of the tenant under a secure tenancy with the situation that section 85 is dealing with, which is the exercise of powers by the court on the making of a possession order. [para 37]

The powers in s.85 are exercisable ‘at any time before the execution of the order’. There is no limitation on death, whereas s.87 to 90 deal expressly with the death of the tenant but do not contain any provision limiting the application under s.85. A number of situations in which the s.85 right could be exercised were imaginable, for example:

where the tenant has died before the possession order has taken effect to end the tenancy. There would seem to be no reason why the deceased’s personal representative should not be able to seek the exercise of the power to postpone giving effect to the possession order, for example to enable the deceased’s affairs to be put in order and any licensee or sub-tenant to be re-housed. Another example of a case where one would expect the personal representative to be able to apply would be where the deceased tenant, having made good a previous default, has applied for the date for possession to be postponed but dies the day before his application is to be heard. [para 38]

If the s.85 powers were exercisable after the tenant’s death in the circumstances envisaged in s.90(3) or by a spouse in occupation at tenant’s death when possession proceedings are brought by s.85(5), then it was clearly envisaged that the s.85 powers did not end with the tenant’s (or tolerated trespassers’) death.

For these reasons Knightley was wrongly decided.

Issues iii) and iv) therefore did not require deciding.

On issue v) the proceedings in which application to be appointed on behalf of the estate would be made were the original possession proceedings, given that the right to apply under s.85 remained. (On a personal note, I claims small vindication on this point as I took this view from the start of the case). On this Lord Hope says:

I have to say that I regard this solution to his case to be preferable to the solution for which Mr Luba contended under the first issue. It is directed precisely to the situation that arises where a former tenant who has become a tolerated trespasser has died. Above all, it preserves the discretion of the court under section 85(2) to do what is just in all the circumstances. This is a protection for the landlord which would be entirely absent if the first solution were to be adopted. [para 40]

And then there is the only other substantive judgment by Baroness Hale, with whom Lord Walker agrees. Baroness Hale’s findings are the same as Lord Hope’s. The circumstances are not right to overturn Thompson and Burrows, but Brent v Knightley is wrongly decided. And the reasons given are similar. But what is notable about Baroness Hale’s judgment is the strength of her view that:

had it not been for Parliament’s intervention, it would have been the duty of this Court to set the matter right. There is no reason to believe that Parliament intended that such an anomalous status should arise as a result of the provisions of the 1980 and 1985 Housing Acts. There is little reason to believe that the full implications of their decision were apparent to the Court of Appeal when they decided Thompson v Elmbridge Borough Council [1987] 1 WLR 1425. That decision was assumed to be correct by the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448 but it suited both parties for them to do so.[para 44]

The issue did not directly arise in Knowsley and:

Thus there is no House of Lords case which has addressed the issue full on and reached a reasoned conclusion about it. If there had been, it would have had to address all the conceptual and practical problems which have arisen since Thompson. [para 44]

Lest we were in any doubt about those consequences, the tolerated trespasser is described as an oxymoron.

These were not people whom the local authority were reluctant to have there and were waiting for the machinery of eviction to take its course. These were people whom the authority wanted to have there, provided that they could be persuade to pay most, if not all, of their rent. [para 45]

This situation would normally have given rise to a licence at least and most probably – Street v Mountford – a tenancy. But the House had relied upon the availability of a s.85 application, while no one had argued that the same policy result could have been achieved by over ruling Thompson.

It is unlikely that the Court realised the implications of its decision, particularly in view of the later Court of Appeal decisions in Harlow DC v Hall and Bristol City v Hassan. The effect a date for possession being given in old possession orders was surely usually accidental. A different construction of s.82(2) could have avoided all of this.

Were it not for the Housing and Regeneration Act 2008, it would be right for the court to ‘sort this matter out’.

The decisions in Thompson and the cases which proceeded on the unquestioned basis that Thompson was correct were not merely wrongly decided. They set the law on a course which was wrong in principle and wrong in practice. [...] Even if some local authority landlords might have welcomed not being under a contractual obligation to repair properties for which the occupier was not paying the full rent, they would also have acknowledged that it could not be right for them to be able to charge the equivalent of the full rent which was calculated on the basis that they did have an obligation to repair. In such circumstances, it would ordinarily be our duty to recognise that the law had always been what we hold it to be. [para 54]

However, the only gaps remaining in the Housing and Regeneration Act 2008′s approach to the issue were the repairing covenant for the period of tolerated trespasserhood – for which the Court’s discretion to find the tenancy as continuous had been provided in the Act – and the circumstances of the present case, which overturning Brent v Knightley solved. So:

I would reluctantly dismiss the appeal on the first issue but happily allow it on the second. [para 56]

Barry Austin’s application under s.85 remitted to the County Court for decision.

Comment
It is perhaps understandable that their Lordships could not bring themselves to overturn the whole tolerated trespasser regime. Given the thousands, if not tens of thousands, of county court judgments based on it, the consequences could be very messy indeed. But the clear implication of the judgments is that the whole 20 year period was an error that should not have been made.

The practical result of this case should not be underestimated. We know of at least 10 cases stayed pending this judgment. Anecdotally, I know of at least another one that settled happily, but which would not have been contentitious at all on this result. Considering the tens of thousands of tolerated trespassers, there are likely to be significant numbers who died while having tolerated trespasser status and whose would-be successors now have a chance to apply to postpone possession and thereby succeed.

The process is that the estate, if there was a will, should apply under s.85 in the original possession proceedings to vary the date of possession. Or where the TT was intestate (more usual), the potential successor should apply under s.85 to vary the date of possession in the original possession proceedings. As Knightley is overturned, I don’t think there should be any need to first apply under CPR 19.8 to be appointed as representative first.

And, if anyone needed reminding, the last lacunae of the TT regime – the landlord’s repairing obligation – can be remedied (as things currently stand) by application under s.85 to vary the original possession order, which remains valid despite the replacement tenancy and/or by application under Schedule 11 of the Housing and Regeneration Act 208 for the replacement tenancy to be considered as continuous from the original tenancy. It is probably worth brandishing the passage of Baroness Hale’s judgment on repairs and charging mesne profits of full rent quoted above when doing so.

Congratulations to Charlotte Collins of Anthony Gold, who case this has been throughout, Desmond Rutledge and Jan Luba QC of Garden Court (for the latter not least for standing in front of the Supreme Court to argue that his own submissions on the then Housing and Regeneration Bill in Knowsley were wrong. That takes both courage and grace.)

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ’52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

This was a renewed application for permission for a Judicial Review of Wandsworth’s refusal of a discretionary succession.

Mr Neville had been living with his mother. Mrs Neville had a secure tenancy from Wandsworth from 1999. In April 2004, a suspended possession order was made against Mrs Neville, which stated that she was to give up possession on 12 May 2004, not to be enforced on conditions. Mrs Neville became a tolerated trespasser.

Mrs Neville died in January 2008. In April 2008 Wandsworth wrote to Mr Neville saying that he had no right to succeed but could apply for a discretionary allocation. Mr Neville requested a discretionary application.

Between this first request and the date of Wandsworth’s decision, Wandsworth’s policy on discretionary allocations changed to include a condition that “the deceased had not lost their security of tenure.”

Mr Neville sought judicial review on grounds that:
1. that his mother was still a secure tenant or at any rate still a tenant at the date of her death;
2. that the council was therefore required to consider the claimant’s application for discretionary allocation;
3. that that application fell to be considered under the policy in force at the date of the application, or at the date of the first letter – but in any event under the old policy rather than the new
policy.

Held:
The date of possession under the April 2004 order was clear. Knowsley HT v White [2008] UKHL 70. applied only to assured tenancies. Austin v Southwark LBC [2009] EWCA Civ 66 provided that the tenancy ended on the date of possession unless restored within the life of the tenant.

It follows that under either version of the policy the claimant had no right to be considered for discretionary allocation, as both versions referred specifically to the death of a tenant.

Even if that was wrong, Mr Neville had failed to provide the information required to decide his application until after the new policy was in force. His application could not be regarded has having been made with a chance of success in the time the old policy was in force.

Further and more importantly “a policy is a policy. It indicates how
decisions are to be made. There is a legitimate expectation only that decisions made will be made under the policy in force at the date of the decision. There is in principle no expectation that a policy will not change and there is no expectation that a decision will be made under any other policy than the one in force at the date of the decision.” This is supported by the decision in Odelola v Secretary of State
for the Home Department [2009] UKHL 25

The letter in April 2008 was not such as could give rise to a legitimate expectation.

Permission refused.

I do wonder about that finding on the policy in force at the date of the decision being the only relevant one. Mr Neville might have been a bit tardy in getting his information in on time, but what if in a different case, the delay was solely the Council’s and in the interim the policy changed?

Since the beginning of replacement tenancies on May 2009, there have, rather surprisingly, not been any reports on cases involving the Housing and Regeneration Act 2008 Schedule 11 s.21 – when the new tenancy and the original tenancy are to be treated as the same and continuous for the purposes of a relevant claim (for breach of tenancy condition or statutory duty). Now, we’ve heard about one such case.

For an ex-tolerated trespasser with, say, a disrepair claim extending back over the period prior to May 2009, there appear to be two routes to recovering tenancy for the whole period since the possession order and with it the right to claim for breach of condition of tenancy. One is to make a s.85 Housing Act 1985 application to postpone possession or for discharge within the original possession proceedings; the other is to apply within issued disrepair proceedings for an order that the replacement tenancy to be treated as the same tenancy and continuous under s.21(3) Schedule 11 HRA 2008. Of the two, the s.85 application has other benefits for the tenant, for example by altering a previous possession order so that the landlord can’t issue a warrant without notice.

However, there are always complications. In LB Lewisham -v- Litchmore, there was a disrepair counterclaim to a fresh possession claim by Lewisham on the replacement tenancy, but the Defendant had been a tolerated trespasser for some years before the replacement tenancy began in May 2009, as the result of a previous possession order. The disrepair counterclaim was limited by the lengthy period of tolerated trespasser-hood. An application for an order under s.21(3) was made by the Defendant for the replacement tenancy to be treated as the same and continuous. Lewisham opposed the application.

The Court made the Order that the replacement tenancy be deemed the same tenancy and continuous from the date of possession in the original order, so that the counterclaim could include the full period of alleged disrepair. Lewisham were granted permission to appeal.

Interesting to see that a Court is prepared to exercise the s.21 discretion. S.21(3) states:

In proceedings on a relevant claim the court concerned may order that the new tenancy and the original tenancy are to be treated for the purposes of the claim as—
(a) the same tenancy, and
(b) a tenancy which continued uninterrupted throughout the termination period.

Will this discretion be effectively the same as that exercised under s.85 Housing Act 1985?

We’ll keep our ears open for news of Lewisham’s appeal.

[Thanks to Charlotte Collins at Anthony Gold.]

Highlights include:

(a) Richard Drabble QC giving the key note speech. Richard has had a very active year in the housing field having appeared in Manchester CC v Pinnock, R (Weaver) v L&Q, Hanoman v LB Southwark and Austin v LB Southwark;

(b) Jan Luba QC outlining the expected developments in housing law in 2010. Given that Jan’s work in Holmes-Moorhouse v LB Richmond, Austin v LB Southwark, R (Ahmed) v Newham, R (Aweys) v BCC / Moran v Manchester CC, his insight into the coming 12 months is not something you’d want to miss.

(c) HHJ Platt, DJ Sterlini and DJ Backhouse giving a perspective from the county court bench. If you wanted to know how the changes and developments of the last year are playing out at the ‘coal face’ then you couldn’t ask for three better informed commentators.

(d) Claer Lloyd-Jones of the TSA and their plans for the future regulation of housing law.

(e) Professor David Cowan (who we here at NL have a bit of a soft spot for) of Bristol University and Arden Chambers, whose work on Ground 8 might (we hope) eventually lead to its abolition or restriction.

Other friends of NL who are speaking include James Stark, Dawn McPherson, Jonathan Manning and Chris Johnson.

We can’t recomend the HLPA conference highly enough. The majority of your NL team will be in attendance. Do come and say hello.

It seems that the time of the tolerated trespasser troubling the Lords is not yet over, as the situation in Austin was not caught by the Housing and Regeneration Act. So one to watch out for.

Also in force today – The Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009. SI 2009/1262

So, replacement tenancies all round, then.

[edit - now confirmed on the DCLG site.]

[Edit: The SIs are not available yet on Gov. sites. Robert Latham has kindly passed on printer’s copies of the SIs but these are, of course, not official. Download the SIs:
SI 2009/1261 HRA commencement
SI 2009/1262 Successor landlords order