Reincarnation of Tenancy?

This is more of a question than a post, a question on a problem that I think I understand, but that I hope has a better conclusion than the one I’ve got to.

The issue is when can a new tenancy be effectively said to have arisen after a Suspended Possession Order (assuming that it has either been breached or is a post 2001 form N28 order)?

In particular, when a tolerated trespasser has paid off rent arrears and court costs, so that they cannot apply under s.85 to vary the date of possession, when does a new tenancy arise? If it does at all?

The same issue can and does apply for others who haven’t yet paid off the arrears, depending on the actions of the landlord. A new tenancy might have come into existence, even if the arrears haven’t been paid off, and in some circumstances, this might be preferable to a s.85 application to vary the date of possession.

It seems to me that the current position is summarised by Swindon v Aston [2003] HLR 610 and Lambeth v O’Kane [2005] EWCA Civ 1010.

  • No new tenancy is automatically generated when the suspended possession order ceases to be enforceable because arrears and costs are paid off (Swindon v Aston).
  • It takes more than the usual, routine documents to create a new tenancy – so notices of ‘rent increases’ etc. are not sufficient to indicate that a new tenancy has been entered into by the landlord. It takes something that indicates a clear intention to enter into legal relations on the the part of the landlord to create a new tenancy (Lambeth v O’Kane).

So, for a tolerated trespasser, or perhaps – if all the arrears and court costs have been paid off, a bare trespasser (London & Quadrant v Ansell), if the landlord does not expressly grant a new tenancy, what are they to do?

Many people will be stuck, of course, but my question is what is arguable as evidence of the landlord’s intention to create the legal relation of landlord and tenant, after a suspended possession order and tolerated trespasser status?

Our current view is that it is sufficient for the landlord to bring fresh possession proceedings, even if only by serving a new Notice Seeking Possession, to argue a new tenancy was created. An NSP, rather than Notice to Quit or warrant, clearly implies a recognition of a legal tenancy on the part of the landlord.

Although not uncommon, this is hardly certain to happen. So, my question to the housing law multitudes who read this blog is, given that mere notices of rent increases, or even notices of change conditions of tenancy are not enough, post Lambeth v O’Kane, to create a new tenancy, what else might be sufficient to argue the landlord’s intention was to enter legal relations of landlord and tenant?

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Housing law - All, secure-tenancy, Tolerated trespasser and tagged , , .

6 Comments

  1. I agree with your take. It seems now to be accepted that a tolerated trespasser is in an unenviable position (no right to repairs, right to buy, liable to be evicted very easily etc). But there is no way out unless you can argue that a new tenancy has been created. I have a case where the tenant is in just that position, having received a SPO and complied fully. The RSL has now served a section 8 and a notice of intention to demote. My view is that neither of those acts are consistent with the relationship being that of tolerated trespasser and tolerating property owner; it is only consistent with the landlord accepting that a new tenancy has been created. In my case, it was an assured, so I would probably concede that the new tenancy is an AST.

    As it happens, the point has not been spotted by the landlord so we are running it as a regular possession defence. No doubt, you’ll have seen Ansell, Hall, White v Knowsley.

    There was quite a useful consultation paper at the communities.gov site released in August. See http://www.communities.gov.uk/publications/housing/toleratedtrespassers

  2. Lee, thanks, that is useful, particularly the notice of intention to demote point. I now think that a NTQ might also have the same effect, at least where the ground is a fundamental breach of the tenancy agreement – but then facing the problem that any new tenancy has likely already been determined. (An NTQ as trespasser wouldn’t revive tenancy and would likely stand, vide L&Q v Ansell.)

    The consultation paper is interesting – seems like a clear look at the problem. I lean towards the ‘turn all SPOs to PPOs retrospectively’ option, although I can see the issues that might raise for denied successions etc..

    I don’t think there should be a retrospective amnesty/indemnity for disrepair, though, as it is only very recently that Councils and RSLs have really relied on tolerated trespasser status to not do repairs.

  3. I lean towards the ‘turn all SPOs to PPOs retrospectively’ option, although I can see the issues that might raise for denied successions etc

    I don’t think that is CPR compliant!

  4. Has anyone seen or heard any progress on this matter? I have been waiting for the outcome of the consultation to no avail.

  5. Bea, rumour has it that legislation may be forthcoming in the autumn. There are even hopes that it may be retrospective. Fingers crossed, particularly now we have Caroline Flint in charge…

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.