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The importance of not being earnest


Via a somewhat convoluted route, we have received news of a cautionary tale from Croydon. Consider it an illustration of the need to use conditional language when writing about something which is supposed to happen but which is outside of your control. It is also a story which may (see, that’s how you do it) have ramifications for Croydon Council’s tolerated trespassers.

Croydon v Kamal, 6CR24634, Croydon County Court 6 May 2009 was an application for stay of eviction on a breached suspended possession order made in 2006. Mr Kamal, via South West London Law Centres, made a rather unusual submission.

On 23 March Croydon had written to him. The letter was headed ‘Replacement Tenancy’ and said, in full:

I am writing to inform you that on 6 April 2009, your status will automatically change from a tolerated trespasser to that of a secure tenant.

This means that your status as a secure tenancy [sic] will be reinstated and you will be granted a replacement tenancy.

As a secure tenant, the local authority must obtain a court order if we want to end your tenancy. You have a number of legal rights, the main ones of which are summarised below:-

The right of succession
The right to exchange with the Council’s consent
The right to buy
The right to repair

Please contact me if you wish to discuss this letter.

Oh dear. I’ll say a little more about this letter below.

Mr Kamal argued that this letter constituted the grant of a new tenancy, from 6 April; that the Council were unable to rely on possession orders obtained under the old tenancy and the warrant must be dismissed.

Croydon argued that the letter was sent in anticipation of the relevant parts of the Housing and Regeneration Act 2008 coming into force and it was simply advising on the effect of that Act.

Mr Kamal replied that the letter made no reference to the Act, the relevant parts of the Act were not in force and in any case, the letter was inaccurate if it were simply advice, as the Act did not require the landlord to obtain a new possession order if there was an existing one in effect.

The District Judge held that a new tenancy had come into existence on 6 April 2009 and dismissed the warrant.

It has to be said that on the express terms of the letter, that conclusion is hardly surprising. To those of us awaiting the introduction of Schedule 11 of the H&RA 2008, the terms of Croydon’s letter, although perhaps unfortunately phrased and inaccurate, would be plausibly intended to be advice to the ‘new tenants’. However, to the recipients, assuming they don’t read this blog, it could only be read as a statement that Croydon would be giving them a new secure tenancy from 6 April: no ifs, buts or conditions.

I feel a little sorry for Croydon. The idea of sending a letter about the supposedly forthcoming change of status was a good one. Putting it in clear language was a good thing. Putting it in such definite terms, when, let’s be honest, none of us were certain that Schedule 11 would be in force on 6 April – and without reference to the Act – was, at the very best, a hostage to fortune. And the mistake over the effect of past possession orders just piled error on misfortune.

An unanswered question is did Croydon send this letter to all its tolerated trespassers? From the form of the letter, it would appear that they did.

Would this mean that all Croydon tolerated trespassers have a new tenancy from 6 April? Well, it was a DJ decision so not binding in any way, but clearly arguably yes. If so Croydon has the distinction of being the first authority in England and Wales to abolish tolerated trespassers. Would it mean that none of Croydon’s previously existing possession orders would be of any continued effect? Arguably, yes, if the (ex) tenant got this letter.

I suspect someone in Croydon Council might be in for a bit of a rough performance assessment meeting.

And on the other hand what would this mean for people who would arguably have been better off making a s.85 application to vary or discharge the original possession order to regain their original tenancy? For example those who had applied for the right to buy prior to the old PO (Honeygan-Green), or those with a potential disrepair claim for the ‘missing years’ of the tenancy? Does the possibly unwitting grant of new tenancy, with the previous possession orders now of no effect, scupper their position?

Such a mess is the reward of good intentions…

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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