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White v Knowsley – Court of Appeal Judgment


Given today and no surprises.

The upshot is that assured tenants and secure tenants are in exactly the same position in regard to suspended possession orders and that s.9 Housing Act 1989 and s.82 Housing Act 1985 have the same effect despite the difference in wording.

So, any assured tenant in breach of an old suspended possession order, or who received an SPO in form N28 between 2001 and mid 2006, (prior to the introduction of the N28A), regardless of whether it was breached or not, is a tolerated trespasser.

There are now definitely a lot more tolerated trespassers, whereas it was previously just presumed that they probably were.

The judgment is worth reading as it sets out the history and current position clearly. (White v Knowsley Housing Trust [2007] EWCA Civ 404)

The result is that same practical concerns apply with assured tolerated trespassers as with secure tenancies:

  • An application will be necessary to revive the tenancy, but under s.9 HA 1989, not s.85 HA 1985 .
  • The application must be made while the possession order is enforceable, so prior to the arrears and costs being paid off in most cases.
  • The tenancy does not automatically revive, nor a fresh tenancy begin once the order is unenforceable.
  • In the interim, the covenants of the tenancy are unenforceable. This includes repairing covenants, any right to buy rights and succession rights.
  • However, while the possession order is enforceable, the ex-tenant also has the protection of the possession order in applying for stay of eviction when a warrant is issued.

This part of the saga is over. Next?

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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