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?