As it stands, Schedule 11 of the Housing and Regeneration Act will end the existence of tolerated trespassers who meet these conditions:

(i) the home condition is met (ie that the dwelling house remains the ex-tenant’s
only or principal home).
(ii) the ex-landlord is entitled to let the dwelling-house, and
(iii) the ex-landlord and the ex-tenant have not entered into another tenancy after
the date on which the original tenancy ended but before the commencement
date.

This will cover virtually all tolerated trespassers whose landlord has remained the same. They will get a ‘replacement’ tenancy. But what of those where there was a stock transfer, or one RSL was taken over by another, during the period in which the (ex) tenant was a tolerated trespasser? This involves substantial numbers of people, given the major stock transfers of recent years.

At present, the Act will not change their position. It was raised as an amendment during the passage of the Bill, but the amendment wasn’t passed as the Government promised that the Act would give the power to make such a change by order, after further consultation, such that part 2 of Schedule 11 applies to successor landlords. (Somehow, they hadn’t thought to include this issue in the original consultation).

Now the consultation is here. The consultation document can be downloaded from the DCLG here. The closing date is 19 December 2008.

Interestingly, the documents authors state that:

Our preliminary view is that in all the above situations there is a strong case for arguing that it is unfair for a change of landlord, which is outside a tolerated trespasser’s control, to determine whether they have their tenancy status restored or not. There is also a very real risk that if the situation for transferring tolerated trespassers is not remedied, it could lead to further litigation, once the provisions in Schedule 11 are brought into force.

My view (and I will hazard also that of other NL contributors) is that there are issues of both fairness and practicality here. The tolerated trespasser ‘regime’ is already ludicrously complex and needs resolving once and for all, not piecemeal and with a whole set of fresh technicalities on who is in or out. This may well mean doing ourselves out of a whole fresh swathe of work, of course, but I think both tenant and landlord side housing lawyers (and those who do both) would heave a sigh of relief, both for themselves and (particularly) for their clients.

The full document is worth reading, raising issues with (ex) starter tenancies – assured shorthold for RSLs, introductory tenancies (where successor does not have an introductory scheme), secure to assured (LA to RSL transfers), and so on.

There are some particularly difficult questions – for instance on succession rights for an LA to RSL transfer. Some transfers give assured tenancies, but with contractual preservation of ‘secure’ rights. What of a replacement tenancy’s succession rights?

What of the Court’s discretion to ‘backdate’ the tenancy for breach of tenancy agreement/s.11 claims (disrepair primarily)?

The full list of consultation questions follows, just so you are prepared to give answers…

Existing landlord practice relating to transferring tolerated trespassers
(1)  What is the usual practice of successor landlords when dealing with
tolerated trespassers? Will tolerated trespassers generally be offered a new
tenancy and, if so, what type of tenancy will they be offered? Does this
differ from the type of tenancy offered to transferring tenants?
(2)  In what circumstances would tolerated trespassers not be offered a new
tenancy?
(3)  Is it possible to identify occupants who have transferred as tolerated
trespassers and who have not been offered a new tenancy (ie who continue
as tolerated trespassers)? If so, is it considered that the numbers are likely to
be significant or relatively small?
(4)  Are there any benefits to landlords in the existing situation and, if so, what
they are?
(5)  Are the benefits to landlords sufficient to outweigh the disadvantages,
particularly for tenants?

Legislating for successor landlord cases
(6)  Should the Government introduce secondary legislation to ensure that
tolerated trespassers whose landlord has changed, but who have not
been granted a tenancy by the new landlord, have their status as tenants
restored?

Change of RSL landlord due to merger or takeover
(7)  Should tolerated trespassers who transfer from one RSL to another RSL (and
who are not granted a new tenancy by the successor landlord) be issued
with the same sort of tenancy as the original one?
(8)  If this resulted in tolerated trespassers receiving an assured tenancy on
starter tenancy terms (because the original tenancy was a starter tenancy),
would this cause difficulties for landlords?
Change of local authority landlord due to boundary adjustment
(9)  Should tolerated trespassers who transfer from one local authority to
another local authority (and who are not granted a new tenancy by
the successor landlord) be issued with the same sort of tenancy as the
original one?

Tolerated Trespassers: Successor Landlord Cases
(10) Where the tolerated trespasser had originally held an introductory tenancy
but the successor local authority landlord does not operate an introductory
regime, should he or she be issued with a secure tenancy?
Change of landlord from local authority to RSL following large scale
voluntary transfer
(11) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a demoted tenancy under the 1996 Act be
offered a new demoted tenancy under the 1988 Act?
(12) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held an introductory tenancy be offered an
assured shorthold tenancy or a full assured tenancy?
(13) Where no new tenancy has been signed, should transferring tolerated
trespassers who originally held a secure tenancy be offered an assured
shorthold tenancy or a full assured tenancy?
(14) Are there any other options in relation to transferring tolerated trespassers
(who have not signed a new tenancy) which might be considered? If so,
please provide details on what these are and the advantages which they
would bring?

Demoted and introductory tenancies
(15) Where the proposals under consideration would result in a tolerated
trespasser being granted a new demoted or introductory tenancy, should
the trial period apply in full, or should they only last for the balance of time
left over from the original tenancy?

Private landlords
(16) Are there likely to be transferring tolerated trespassers in the private rented
sector and, if so, what is likely to be the scale of the problem?
Applying the provisions in Part 2 of Schedule 11 to successor landlord cases
(17) Should newly restored tenants who are already a successor under the
original tenancy be entitled to succeed under the new one?
(18) Where newly restored tenant are not already a successor, should the
succession rules which apply to them be those which are appropriate to the
new tenancy, or the original tenancy?
(19) Should the “termination period” count towards qualification for the
preserved right to buy, as it does for tolerated trespassers issued with new
tenancies under the 2008 Act whose landlord has not changed?
(20) Under part 2 of Schedule 11, where landlords have taken decisions regarding
individuals’ voting rights based on their status as tolerated trespassers,
these decisions cannot subsequently be challenged on the ground that
the local authority failed to include people in the consultation process
whom they should have included, or vice versa. Should this be extended
to successor landlord cases so that similar provisions would apply to any
consultation carried out by either the original or the new landlord during the
termination period?
(21) Part 2 of Schedule 11 gives the court discretion to treat the new tenancy
as the same as the original tenancy so that they can allow claims relating
to the period when the tenants was a tolerated trespasser. This applies to
claims by both landlords and tenants for breach of tenancy agreement, or
for the tenant to claim for breach of statutory duty. Should this be extended
to successor landlord cases for the purpose of a claim involving the new
landlord and the old landlord?
(22) Part 2 of Schedule 11 provides that the possession order and other court
orders made in respect of the possession proceedings will apply as far
as practicable to the new tenancy. Should similar provision be made for
successor landlord cases, so that any orders in the possession proceedings
apply to the new tenancy, so far as practicable?
(23) If so, should this depend on whether the new landlord has been made party
to the proceedings?
(24) In seeking to apply the provisions in Part 2 of Schedule 11 to successor
landlord cases, are there any other issues which we have not identified and
which would need to be considered?

Impact Assessment
(25) Does the impact assessment correctly identify the nature and extent of the
costs and benefits associated with the 4 options which are considered?
(26) Is it considered that any group is/groups are represented disproportionately
amongst tolerated trespassers in successor landlord cases?
(27) Is there any evidence to suggest that the options under consideration would
discriminate on the grounds of race and ethnicity; disability; age; gender and
gender identity; sexual orientation; religion and/or belief?