18/05/2009

And now, the end is near

With grateful thanks to James Stark of Garden Court North and North West Housing Law Practitioners Group, we can pass on some news on the introduction of Schedule 11 Housing & Regeneration Act 2008 and the end of the tolerated trespasser.

The SI should be before the Lords today and the amended Sch 11 provisions are intended to be in force on Wednesday, 20 May 2009. This is, of course, no guarantee that this will happen, but it is what the DCLG intend.

North West HLPG had made representations on some issues with Sch 11 and the amendments.

First, they argued that the amendments to Section 9(4) and 85(4) should not be brought into force as they would have the effect of abolishing propleptic discharge. Apparently, the DCLG has accepted this and the amendments will not be brought into force.

The effect of s.171A of the successor landlord order is that ex-tolerated trespassers with a successor landlord will not get their ‘preserved’ RTB unless the original possession order is discharged. The DCLG are apparently looking for a solution.

Also raised is the interesting, if unlikely to be common, issue of what happens to a proleptic possession order (as in Honeyghan-Green) following a replacement tenancy. The answer seems to be that the proleptic provisions continue to have effect, so when the arrears etc are paid off, the original tenancy revives, regardless of whether a replacement tenancy is in place.

Is this it? Is the era of the tolerated trespasser (almost) at an end? Have they finally solved the Schleswig-Holstein question?*

Update 19 May 2009. It is confirmed that the intent is for Schedule 11 and the Successor Landlord Order to be in force from tomorrow, 20 May. There should be a brief announcement on the DCLG ‘what’s new’ page of their site.

[* See the minutes of the Delegated Legislation Committee, Monday 27 April 2009]

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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