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.