The rights of tolerated trespassers

The Supreme Court has ruled that the death of a 'tolerated trespasser' does not deprive the court of its power to postpone the date of a possession order, thereby reviving the tenancy

In Austin v Southwark London Borough Council [2010] UKSC 28, the Supreme Court has held that the death of a tolerated trespasser does not deprive the court of its power under s.85(2), Housing Act 1985, to postpone the date of possession under the possession order, thereby reviving the tenancy. Accordingly, the brother of a deceased tolerated trespasser was entitled to apply under CPR 19.8 to be appointed as the deceased’s representative to make an application under s.85(2).

Mr Austin’s brother, Alan, was the secure tenant of a property owned by the authority. On February 4, 1987, the authority obtained a possession order against Alan on the ground of rent arrears. The order provided that it was not to be enforced as long as Alan paid the arrears of rent, amounting to £3,312.98, by March 4, 1987. He failed to comply with the terms of the order. He remained in the property, however, making regular payments.

On February 8, 2005, Alan died. Mr Austin maintained that he moved in to live with his brother in October 2003 and that he cared for him from then on. Alan did not leave a will and no application was made for administration of his estate. On September 11, 2006, the authority served notice to quit. In January 2007, they issued possession proceedings.

Mr Austin applied for an order under CPR 19.8(1)(b) appointing him as representative of Alan’s estate so that an application could be made under s.85(2), Housing Act 1985, to postpone the date for possession in the possession order, thereby reviving the tenancy. The applicant claimed to have resided with his brother from October 2003 until his death so that, if the tenancy were revived, he would succeed to it under s.87, 1985 Act.

The circuit judge dismissed the application. He held that an application to revive a tenancy under s.85(2), 1985 Act, cannot be made after the former tenant’s death. Mr Austin’s appeal to the High Court was dismissed: [2007] EWHC 355 (QB). His appeal to the Court of Appeal was also dismissed: [2009] EWCA Civ 66; [2010] H.L.R. 1. The Court held that it was bound by Brent LBC v Knightley (1997) 29 H.L.R. 857, CA, to hold that a former tenant’s right to apply under s.85(2) terminates on his death.

Mr Austin appealed to the Supreme Court. In Knowsley Housing Trust v White [2008] UKHL 70; [2009] A.C. 636, [2009] H.L.R. 17, the House of Lords held that the concept of the tolerated trespasser did not apply to assured tenancies under Housing Act 1988; an assured tenancy continues until the warrant for possession is executed. Lord Neuberger observed that, but for the decision of the House of Lords Burrows v Brent LBC [1996] 1 W.L.R. 1448,  there was a strong argument that the position under the 1985 Act should be the same as that under the 1988 Act. He declined, however, to hold that this was so. Before the Supreme Court, Mr Austin sought to re-open the argument.

The Supreme Court was not persuaded to depart from Burrows. There was concern that to do so would create problems for social landlords which had assumed that those who had failed to comply with the conditions in suspended possession orders were not entitled to enforce repairing covenants: see Lord Hope, at [28]. Further, reversing Burrows might undermine the scheme for dealing with tolerated trespassers in Housing and Regeneration Act 2008, Sch.11: see Lord Hope, at [29].

The Supreme Court, however, allowed the appeal, overruling Knightley. The fact that a former secure tenant has died does not deprive the court of its jurisdiction to exercise its power under s.85(2) to postpone the date of possession under a possession order, thereby reviving the tenancy. Accordingly, Mr Austin was entitled to apply under CPR 19.8 for the date of possession to be postponed.

This article was prepared by barristers at Arden Chambers.