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The Tolerated Trespasser Rides Again!


OK, so the title of this post may be an exaggeration of what is only a passing reference to an old friend in Fareham BC v Miller [2013] EWCA Civ 159. But it is interesting to see it used as part of the ‘nuts and bolts’ of an Article 8/proportionality judgement.

Mr Miller (M) held a non-secure tenancy of a flat with Fareham BC. M was a habitual offender and a long-standing heroin addict who spent his life in and out of prison. On 13/5/10 the council served a notice to quit because of rent arrears which were cleared very soon afterwards. However, by September 2010, it became clear that the flat was being occupied by a group of individuals whom M claimed had not been given permission to live in the premises and were instructed only to check on the property and collect post  while he was in custody.

These individuals would threaten other residents and cause a disturbance within the flat and a further NTQ was served on 20/4/11. A three-way meeting involving the council’s housing officer, the probation officer and a representative from the Drugs Intervention team took place on 19/5/11. The council was satisfied that M should be allowed another chance as he would receive intensive support upon his release from custody on 20/5/11 and he would be required as part of his licence conditions to live alone at the property. Unfortunately, M was sent back to prison for yet another offence immediately after being released. Possession proceedings were issued on 20/7/11.

The ASB at the premises became worse throughout 2011 and 2012 with urinating from the windows, drugs paraphenalia stewn both inside and outside the flat, smashed bottles and general rowdy behaviour. Despite this, M asserted that he had no effective control over the behaviour of these other individuals and he reported that he was making progress with his drug and alcohol addiction during his imprisonment.

The trial judge on 3/8/12 found that the service of the NTQ was a proper and proportionate exercise of the council’s housing management functions, given the effect of the ASB on the residents of the block. The crux of the case was the meeting of 19/5/11. It was argued on M’s behalf that the council was aware of M’s proclivity as a vulnerable person for offending behaviour and that when the decision was taken to give him another chance, it would not have been any surprise to see him return to prison so quickly after release. It was therefore disproportionate to evict by effectively punishing M for his offending.

Instead of dealing with this question from the point of view of Article 8 or proportionality, the Recorder found that the council had on 19/5/11 revoked the NTQ served the previous month and that the possession proceedings ought to be dismissed as they no longer had a cause of action.

On appeal, Patten LJ found that the Recorder had erred in his analysis of the meeting of 19/5/11. It was not possible at common law to revoke the NTQ, the professionals present at the meeting could not be described as M’s agents from the point of view of the grant of a new tenancy and it was clear from the council’s witness evidence that the council was doing nothing more than staying its hand. Once M returned to prison, he was in breach of the condition on which proceedings were stayed. From 19/5/11 onwards, M was no more than a ‘tolerated trespasser.’

The Court proceeded to consider whether there was an Article 8 defence to the possession claim. The decision to give M another chance was premised on the view that the risks of ASB could only be eliminated if M lived alone at the flat and kept to his licence conditions. This scenario failed to materialise and the property was again beset by nuisance behaviour. On a balancing exercise, the Court found that an Article 8 challenge would have no real prospects of success and a possession order was made.

Comment: it is interesting to observe in this case a focus on the decision to continue with proceedings rather than to start them, which one gets from Central Bedfordshire v Taylor para. 40 and Pinnock  para.45. While on the face of it this can give Defendants’ representatives further opportunities to attack the lawfulness of proceedings, it is in my experience difficult to persuade judges, if a claim is soundly based like this one was, that a later decision causes the lawfulness to unravel. I’d be very interested to hear other people’s views/experiences.



SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


  1. Justin Bates

    It really brings home the importance of getting the NTQ quashed on any public law/art.8 defence.

    • S

      I know Lord Phillips considered this in Powell, but how can you do it? A county court can’t quash it.

      • J

        Why not? If they’re going to deal with public law defences then they must have the range of public law remedies – Barnsley MBC v Norton (I think)

        • NL

          Exactly, surely can declare it unlawful.

        • S

          S.38(3), 1984 Act? Pretty clear to me that a county court can’t quash a notice to quit and the HoL never said you could with a public law defence.

          Yes it may declare it to be unlawful but its effect remains; the court is simply preventing the authority from recovering possession. There is quite a lot of administrative law post Anisminic which states that an unlawful act remains effective until quashed by the high court. If the county court can’t quash the ntq remains.

          This is a real problem with public law/art.8 defences and I don’t think you can just duck it like that.

  2. JS

    The facts of this case were rather extrardinary though. Had the Defendant been allowed back in and made one payment of rent or had he been present at that meeting the only proper inference would have been new tenancy .

    It is clear from Powell that there is a power to set aside the NTQ – the question I suppose is from what does that derive – is it as a result of one of the prohibited forms of relief in SEction 38 or not?

    A declaration that it could not be relied upon would not set it aside – arguably could it be regarded as a proper and extended form of relief in the form of a breach of the HRA being a defence under SEction 7 HRA 1998 ?

    It would be bizarre if a successful defence that involved seeking having the NTQ set aside as well would require a further trip to the Admin Court after a county court judge declared eviction of a former tenant disproportionate



  1. The Tolerated Trespasser Rides Again! | GRL Landlord Association - [...] The Tolerated Trespasser Rides Again! [...]

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