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Tolerated trespassers

This page deals with the HL case of Knowsley Housing Trust v White and the changes brought about by the Housing and Regneration Act 2008.


Assured tenancies

Knowsley Housing Trust v White
[2008] UKHL 70

In the dying days before the end of the "tolerated trespasser" (killed off by Schedule 11 of the Housing and Regeneration Act 2008 - see below) the House of Lords determined that an assured tenancy comes to an end when the order for possession (whether suspended or outright) is executed (paras 78 and 89). (Lord Neuberger, who gave the principal speech, said that had he been free to do so he would also have held that the words "the date on which the tenant is to give up possession in pursuance of the order" in s82(2) of the 1985 Act mean that a secure tenancy comes to an end when the order is executed: paras 91-93).


Effect of suspended possession orders

Honeygan-Green v London Borough of Islington
Porter v Shepherds Bush Housing Association

[2008] UKHL 70

As stated above, in Knowsley the HL decided that an assured tenancy does not come to an end until the order is executed. However, it was not possible to come to that conclusion in relation to secure tenancies by reason of the relevant statutory provisions in the Housing Act 1985. However, in these cases (that were heard at the same time) the House did clarify the law and ameliorate some of the worst problems that had been created by the lower courts' interpretation and application of the relevant statutory provisions. The points decided by the HL can be summarised as follows:
  • The court can make an order for possession that contains a provision providing that in the event of the arrears and costs being paid off the order will automatically be discharged (paras 97 and 100).

  • The terms providing for the discharge of the order can be different from the terms providing for its suspension (para 102). So, for example, it is possible to have an order that provides that the order for possession is suspended so long as the tenant pays £50 per week off the arrears and costs plus current rent; but also provides that the order will be automatically discharged once the arrears and costs have been paid off irrespective of when payment is actually made (para 101).

  • The terms of a suspension are not complied with if payment is made late (para 109). Thus, if late payment is made a landlord may apply for a warrant even if the sum has been subsequently paid (assuming of course that the order has not been automatically discharged under a provision in it by payment of all the arrears). However, the tenant can apply for a further suspension and in these circumstances the landlord may end up paying the costs (para 110).

  • A tenant who has paid off all the arrears and costs can apply for a discharge of the order for possession even if they have not been paid in the manner and at the times set out in the order. Marshall v Bradford Metropolitan Council and Swindon Borough Council v Aston were wrongly decided. (paras 111 to 113).

  • A right to buy that is suspended due to an order for possession is revived once the secure tenancy is revived by subsequent discharge of the order (para 117).



Housing and Regeneration Act 2008 - Schedule 11

The Housing and Regeneration Act 2008 (Commencement No.5) Order 2009 (SI No. 1261)

The Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 (SI No.1262)

The provisions of Schedule 11 of the 2008 Act were brought into force in England and Wales on 20 May 2009 (save for paragraphs 3(3), 8(3) and 14(3) – see below). A detailed explanation of these provisions can be found in guidance produced by the government: "Tolerated Trespassers – Guidance for Social Landlords" at http://www.communities.gov.uk/documents/housing/pdf/1237073.pdf

The issue that arose in relation to the situation where during the period in which the occupier was a tolerated trespasser ownership of the property passed from local authority to a different landlord, has also been addressed by the bringing The Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009 SI 2009/1262 on the same date.

The parts of Schedule 11 that have not been (and which will not be) brought into force relate to amendments that were to be made to s9(4) of the Housing Act 1988 and s85(4) of the Housing Act 1985. These deal with the basis upon which a court may discharge or rescind a possession order. These provisions remain in their current form. (For an explanation see the Guidance note at paragraphs 18 to 20).

New orders for possession

Under the changes any periodic tenancy (whether assured or secure, or indeed introductory or demoted) will not now come to an end until execution of the order for possession, whether the order is suspended or postponed. That position has in fact now been established by the House of Lords in Knowsley v White [2008] UKHL 70 in relation to assured tenancies, thus making the provisions in the Act in this regard redundant. However, the Act does change the position in relation to secure tenancies. (See paragraphs 11 and 12 of the Guidance note for the Government's thinking on this.)

Whether or not the courts will go back to the suspended orders or carry on with postponed orders is perhaps a matter of debate. In favour of returning to suspended orders is the argument that the postponed order was only created to deal with the tolerated trespasser problem and the fact that such orders cause a substantial increase in workload and expense both for the courts and social landlords. On the other hand postponed orders do give tenants, particularly vulnerable ones, a final notice before enforcement steps are taken. See further, paragraphs 27-29 of the Guidance note.

Pre-existing tolerated trespassers

By virtue of Part 2 of Schedule 11 to the 2008 Act nearly all tolerated trespassers once again become tenants. A point to note is that as assured tenants never became tolerated trespassers (according to the decision in Knowsley) these provisions do not apply to assured tenancies.

The statutory provisions are horrendously complicated. In essence the position is as follows:
  • So long as the property is and has been the person's only or principal home since the coming into force of Schedule 11 the ex-tenant gets a new tenancy.

  • His new tenancy is, substantially, subject to the same terms and conditions as his original tenancy.

  • The new tenancy has the same status as the original tenancy. Thus, for example, if the original tenancy was secure then the new tenancy will be secure.

  • However, the new tenancy is subject to the possession order.

  • Thus, if the order is a suspended or postponed order the tenant must comply with the terms of the order if he wants to ensure that he remains in possession.

  • If he does not comply with the terms of the possession order the landlord may apply for a warrant. When the warrant is executed the new tenancy will come to an end.
For a fuller explanation, once again consult the Guidance note.


End of liability for mesne profits

Jones v Merton London Borough Council
[2008] EWCA Civ 660

Summary

If a former secure tenant of a dwelling-house who has become a “tolerated trespasser” decides to cease to occupy the property, his liability to pay mesne profits to his former landlord in respect of the dwelling-house ceases when he gives up possession of it. If he fails to tell his former landlord he is leaving his liability does not continue until his former landlord is notified that he is no longer in possession of it.

Facts

In this case the tolerated trespasser (a former secure tenant against whom an order for possession had been made) physically left the premises and formed an intention not to return in June 2005 when an unknown intruder came into the property and shot him in the leg! However, he left some personal possessions in the property which remained there until November 2005. His father paid the landlord the "arrears" for the period up to October 2005. The landlord made a continuing claim for the period up until 3 July 2006 when they say that they were formally notified of his leaving.

Held

The defendant was only liable to pay damages for use and occupation for the period from 5 October to 15 November 2005. A tolerated trespasser is under no obligation to notify the landlord of the fact that he has given up possession. Wilson LJ at para 28:
    " … [the] submission that this court can graft on to the law a requirement that the liability of a tolerated trespasser for mesne profits should continue until his giving not only of possession but also of notification is, in my view, clearly invalid".
In answer to the complaint that this put landlords in a difficult Wilson LJ continued:
    "Ex hypothesi the former landlord has an order for possession. If its conditions are breached, he can apply, without notice, for the issue of a warrant of possession, which the court bailiff will execute. The bailiff will attempt to notify the tolerated trespasser in advance of the proposed date for execution of the warrant; and the tolerated trespasser still in possession of the premises may, of course, then apply to the court for relief under s.85. But the tolerated trespasser out of possession is highly unlikely even to make such an application and, as we have seen, he cannot successfully do so. So, for social landlords, the upshot is simple: distinguish between your tenant and your tolerated trespasser; monitor whether you wish (or, by order, are required) to continue to tolerate your tolerated trespasser; in particular, monitor his payment of sums equivalent to rent; and, if such come significantly into arrears, apply for a warrant of possession. For the rights of your tolerated trespasser will end upon execution of the warrant of possession; and, alternatively, if, on application by your tolerated trespasser, the court should stay or suspend execution or postpone the date of possession, you will know the terms upon which the court has tolerated continuation of his trespass."
Giving up possession

As is apparent from the above the only issue in the case was therefore when did the defendant give up possession? Was it when he physically left in June 2005 vowing never to return or when he removed the remainder of his possessions in November 2005? The Court of Appeal held that it was the latter. The court relied upon the decision in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 – the adverse possession case – which stated that there were two elements to possession, factual possession and intention to possess. Until he actually removed his final possessions he had not given up his intention to possess the property. Arden LJ put it like this at para 46-51:
    "46 … The crucial question of law is: what did Mr Jones have to show in order to establish that he had ceased to have possession of his flat?

    47 It is clear that to acquire possession a person must both obtain physical control of the relevant property and have formed an intention to control the use of that property to the exclusion of others. Curiously, apart from the sparse authority cited to us .. there is little authority on when the cessation of possession occurs in law. …

    48. In my judgment, two elements are necessary for a cessation of possession by a person who is not under some contractual obligation to give notice in some way. The occupier must cease to control, or to have a legal right to control, the use of the property, and, in addition, he must have ceased to have an intention to control the use of the property to the exclusion of others.

    49. The first element does not generally cause difficulty. But what is necessary to demonstrate the second element, namely that a person has ceased to have an intention to possess? In my judgment, it is not enough that he states that it is his intention to give up possession if he has done acts that belie that intention.

    50. Thus, in my judgment, in the present case, until Mr Jones removed his property from the flat in November 2005, he remained in possession of it. By retaining a not insignificant amount of his goods there, he showed that he had an intention to retain control of the use of the flat. This was the relevant intention, not the intention to live there. He could still have an intention to control the use of the flat, even if he did not intend to live there himself. If he had not left goods there, then the fact that he ceased to live there, coupled with (on this hypothesis) the removal of his goods and the non-payment of mesne profits beyond any normal delay, would ordinarily and in the absence of other factors have been enough to lead to a finding that there had been an intention to discontinue possession.

    51. In any event, to cease to have possession, it is not enough simply to have an intention to give up possession. The intention must be acted upon in such a way that the proper inference from those acts is that there was an intention to give up possession. A person who wishes to give up possession must make that intention manifest: see per Lord Hope in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, in the passage cited by Lord Justice Wilson at [30] above."
Note: The failure to give up keys to the landlord does not necessarily mean that a tenant has failed to give up possession. Wilson LJ at para 23 cited with approval the following passage from John Laing Construction Ltd v. Amber Pass Ltd [2004] 2 EGLR 128 (Mr Hildyard QC, sitting as a deputy judge of the High Court, Chancery Division):
    “The fact of retention of keys (or the failure to return them) may be significant but, equally, it may not be. All it may signify is … an oversight or a desire to protect the premises both for the benefit of the [landlord] and in case the [tenant] might be found still to be liable, without in any way signifying any assertion of rights in respect of the property or being inconsistent with an effective termination of such rights …”
Comment

As the defendant was a tolerated trespasser, rather than a tenant, should the court not have asked a different question; ie was he still in "occupation" rather than was he still in "possession"? If so, would this not have led to the conclusion that he ceased occupation in June 2005 and was only liable to damages for use and occupation up to that time?


Tolerated trespassers who were previously demoted tenants

Impact of Housing and Regeneration Act 2008

Manchester City Council v Pinnock (No.2)
[2011] UKSC 6
(Supplemental judgment given on 9 February 2011)

Introduction

Following on from the substantive decision in Pinnock the Supreme Court had to deal with the ancillary issue of what was the practical result of their decision and what order should be made.

Facts

T had been a demoted tenant. An order for possession was made on 22 December 2008 requiring T to give up possession on 12 January 2009. T appealed to the Court of Appeal, but that appeal was dismissed. Pending the resolution of the further appeal to the Supreme Court, L agreed not to enforce the possession order. The Supreme Court held that Article 8 could be raised in possession proceedings and that it was necessary to consider the proportionality of the decision to evict. However, the court went onto hold on the facts that the possession order should stand.

On 20 May 2009 parts of the Housing and Regeneration Act 2008 came into force. In particular they that provided that:
  • A demoted tenancy did not come to an end on the date specified in the order, but when possession was actually given up; and

  • Any tolerated trespasser, who had been a demoted tenant, but lost that tenancy to a possession order prior to 20 May 2009, but who had not given up possession, was reinstated as a demoted tenant.
In this case, as T had become a tolerated trespasser (because his tenancy came to an end prior to the 2008 Act amendments) it followed that the effect of these provisions would be that despite having lost his appeal, his demoted tenancy would be reinstated and fresh proceedings would be needed to gain possession.

Decision

In some neat side stepping, the Supreme Court relied on Rule 29(1) of the Supreme Court Rules 2009 to set aside the original order for possession and make a fresh order requiring possession to be given up by 10 March 2011. The effect of this was to preserve T's original demoted tenancy throughout the proceedings; and to bring it to an end when possession was obtained against him pursuant the order for possession made by the Supreme Court.

Comment

Whilst this decision is fairly specific to the facts (in particular, where there has been two appeals up to the Supreme Court), it highlights potential problems with the amendments made by the 2008 Act.


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