Tolerated trespassers in the House of Lords

For once we were well and truly beaten to the line in publicly announcing a judgment, and in this instance most deservedly so. At about 11 am at the Housing Law Conference Jan Luba QC announced the result of Knowsley HT v White, Honeyghan-Green v LB Islington & Porter v Shepherds Bush Housing Association [2008] UKHL 70 and Garden Court had copies of the judgment available for the assembled multitudes of housing lawyers. I’m very grateful. I couldn’t get online to get a copy during the day.

So, after scanning the judgment during coffee breaks, and being defeated by my mobile dongle and lack of time in a very full day, here we finally are.

And what a result it is. Headlines tonight, arguments tomorrow:

1. Knowsley HT v White
Assured tenancies persist until enforcement of the order for possession – i.e. until eviction. Assured tenants under any form of suspended or outright possession order are not tolerated trespassers and never have been. (Obviously this doesn’t include summary possession where security of tenure has been lost).

2. Porter v Shepherds Bush HA
There is no such thing as an (ex-secure) entrenched trespasser anymore. Paying off the arrears and costs on a possession order does not mean that the tenant cannot apply to vary the possession order under s.85. Swindon v Aston was wrongly decided.

3.Honeygan-Green v LB Islington was rightly decided at the Court of Appeal. A tenant who served notice of right to buy before a suspended possession order was made has that original right to buy revive when the possession order is discharged.

There is a lot that is of interest in the judgment, including an intriguing apparently obiter suggestion of repairing duties to tolerated trespassers and a partial vindication of James Stark on Payne v Cooper (Hi James!). Expect a detailed post tomorrow evening.

Good conference, by the way, very good indeed, although I’m delighted to say there didn’t seem to be anything much raised that we haven’t at least mentioned here. But the thought and detail, my dears, the thought and detail.

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 assured-tenancy, Housing law - All, Possession, right-to-buy, secure-tenancy, Tolerated trespasser and tagged , , , , , , .

17 Comments

  1. Pingback: House of Lords resolve tolerated trespassers issue | News | Garden Court North - Garden Court North Barrister Chambers

  2. OK, I fibbed – a detailed account will have to wait for tomorrow (Friday). Actual work, including an assured tenant (no longer) trespasser case, got in the way.

  3. Perhaps by the time this is posted, NL or someone clairvoyant among the contributors will be able to tell us what exactly it was that Lord Mance was banging on about? Beats me – he sounds like a prophet without honour in his own wood-panelled study, but he makes a lot of sense in the little that I can glean from his words.

    And isn’t he right, and the others wrong,about time not being of the essence when it comes to “compliance” with the payment terms on SPOs. It sometimes takes a hard-nosed old commercial lawyer to pull the welfare wool out of our eyes. In that sense, one might have expected better from Lord Neuberger.

    Now, can someone find a hard-done-by client who was “a day late or a penny short” on complying with their SPO to take that one forward…? Or are we all going to wait for the HRA 2008 to take (nearly) all this pain away?

  4. I’m scratching my head over Lord Mance’s judgment. More tomorrow, but it seems to be a) utterly hypothetical and b) apparently made without awareness or at least address to Harlow DC v Hall. In any case, whether a proleptic discharge is possible (ooerr) depends entirely on the terms of the possession order, and few will have something that could be construed in that way, regardless of Lord Mance’s generosity with ‘substantial’ compliance.

    It is technically interesting, but practically of extremely limited utility, I think.

    At least the day/penny late client who has paid off arrears and costs can now apply under s.85(2)&(3).

  5. Yes, of course NL – that at least is clear – but I thought you’d be able to resist a crack about proleptic discharge a bit longer.

  6. @Rudy I simply couldn’t restrain myself to wait for the resolution to putatively come in a future post. Call it being prematurely proleptic.

    So I take it that what you meant, but didn’t say, in your first comment is as follows:

    Which out of the vanishingly small number of secure tenants with an SPO that could be considered to have a proleptic discharge term in the order and who have substantially, but not precisely, complied with the conditions of the order want to try to argue that their possession order was automatically discharged. Of course, their only practical reason for doing so would be either a disrepair claim (unless Neuberger’s obiter at 83 is right), or defending a further attempt at enforcement by warrant where they had fallen back into arrears. That is unless they wanted to seek a declaration of revived tenancy just for the hell of it (and just imagine the legal aid application justification for that). And then, for it to be of any broader purpose and assuming the declaration was refused in the County Court, take the case to a court of record (and sustain funding) when their situation has changed as of April 09 anyway.

    That looks realistic.

    But of course, if Jan Luba is right and there are significant advantages in a revival (or here proleptic discharge leading to revival) over a H&RA 2008 ‘replacement tenancy’, then there may be a reason to actually seek a declaration and pursue it upwards. Otherwise… ? About as real world as Lord Mance.

  7. now that assured Ts cannot fall into the TT trap PPOs with a date to be fixed are otiose (I know they never explicitly applied but CJ and DJ’s were quite happy to make PPOs in Bristol v Hassan terms on ATs) what procedural protection should now be granted along the lines of Wandsworth v Whilbey?

    • Why would a PPO be otiose? For the tenant there is the extra safeguard of notification of application to set date, which an order under old style N28 wouldn’t provide.

    • I quite agree. A PPO requiring a date to be set is more useful to a tenant (and more annoying from the POV of a landlord of course). Many tenants do not understand that where there is an order suspended on terms (or worse still with enforcement suspended on terms) then there does not need to be a hearing before a warrant is issued.

    • Although there does not need to be a hearing for an application to set date either. If it is rent arrears and no contest from the tenant, it will usually be summary and without a hearing. The Court of Appeal noted this in LB Wandsworth v Whibley.

    • Yes of course – sorry my language was a bit loose. The point is that the obtaining of a warrant is purely administrative the fact is not reported to the tenant who will not otherwise be aware of it. The PPO gives the tenant that information and the opportunity to force the landlord to prove breach etc. Much better than last minute warrant suspension applications (for the tenant).

  8. It is true that the application to set a date is helpful to a tenant – but landlords are now saying that the mischief that the N28A was designed to avoid – i.e TT – is now a dead issue for assured tenants and no longer needs to be used – conveniently forgetting the procedural safeguards.

    • Isn’t there a clear argument that there be parity in the Court’s expectations and treatment of a ’secure tenant with a postponed possession order’ and ‘assured tenant with a delayed possession order’, as both remain tenants until possession. Why, on the same facts of rent arrears, say, should an assured tenant be denied the same procedural safeguard?

      Thus the argument is that N28A is not about sustaining tenancy until enforcement but about procedure for enforcement – an argument supportable on the basis that a mere small change of the N28 wording would have achieved the continuation of tenancy to enforcement goal. The arguments in Bristol City v Hassan & Glastonbury could surely be cited in support of this view – that it wasn’t merely the end date of tenancy problem at issue in what became the N28A formulation. That’s what I’d argue, anyway, but I am merely a newly qualified solicitor…

  9. Well LL’s counterargument will be Ts never had this procedural safeguard before so why should they have it now and Cts should revert to old style SPOs.

    • Because a) why should their position be worse than that of a secure tenant on a PPO (policy grounds) and b) because a N28 is a nonsensical order for an assured tenant – setting date for possession when it has no effect. If tenancy only ends on enforcement why insist on a date for possession in the order? So, to avoid ineffectual redundancy in the court order, go N28A…

    • … and its worth adding that the N28 was ignored in the past by courts and advocates. I certainly made sure (if I was acting for the tenant) that I got a suspended order not an order suspending enforcement. I was amazed to discover (when this all came out) that enforcement suspensions were at all common because they were obviously broken.

      If the court does not intend possession to be given on a particular date then no date should be set.

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