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Tolerated trespassers: A Luta Continua


As previously pointed out, it was never going to be easy dealing with the great host of tolerated trespassers left in the wake of Harlow v Hall. But the variation in local authority policy in regard to their TTs is immense. Some authorities more or less continue as if the tenancy still existed. Other authorities have taken a fairly hard line on the absence of repairing covenants and duties for all TTs, regardless of whether there has been any breach of the Suspended Possession Order by the former tenant or not.

A major authority that I regularly deal with seems to have limited itself to declaring to those in breach of SPOs that they are now tolerated trespassers. However, it has decided that, as policy, it will oppose any attempt to rescue the tenancy by s.85 application or otherwise.

As a policy, this frankly baffles me.

I’ll grant that such an application is usually linked to some other claim or action (unsurprising, given legal aid funding conditions), such that an application to rescue the tenancy may well be a precursor to, for instance, a disrepair claim. This might make the specific application attractive to oppose as a failed application would kill off all but EPA actions.


It is not just the landlord’s covenants that go up in smoke with TT status, but those of the (former) tenants. These are unenforceable as there is no contract, so the authority is left solely with the big stick of eviction.

What of the ex-tenant who was faithfully following the terms of the SPO, but, post Hall, is a trespasser? Whether they have been informed of their status or not, their treatment is at the whim of the authority and, again, the only tool the authority has to enforce its demands is action for eviction.

I can see why an authority might wish to oppose some applications to rescue the tenancy by postponing the date of possession retroactively. For the life of me I cannot see why it benefits the authority to oppose them as policy (naturally not a public written policy). Case by case surely…

I do think a policy is needed, though, but on a national scale. The Courts and even the DCA reacted with surprising and commendable swiftness to sort out future possession orders (the new form of PPO has now been issued by the DCA).

What is needed is guidance or instructions from the ODPM DCLG on dealing with the thousands of ex-tenants left stranded. It shouldn’t be left to the vagaries and budget pressures of individual local authorities. That is manifestly unfair.

What this means for social landlords/housing associations and their (ex) tenants is also a big question. I feel a post on Housing Associations coming on in the near future. [edit. Except, of course, none of this necessarily applies to Housing Association assured tenants. Housing Act 1988 for assured tenants does not have the same wording as s.82(2) Housing Act 1985 which is what effectively creates the tolerated trespasser. See later posts].

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.


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