Charlotte Collins, Solicitor
Email Charlotte
On 23 June 2010 the Supreme Court handed down judgment in the case of Austin v London Borough of Southwark an appeal heard by a panel of five Law Lords on 21 and 22 April 2010.
The Appellant Mr Barry Austin, is the brother of the late Alan Austin who was the original tenant of a one bedroom flat on the Aylesbury estate in Southwark. Barry Austin approached the council with view to succeeding to the tenancy. It was discovered that an old possession order had been made against his brother which meant that his brother died as a tolerated trespasser and there was no tenancy in existence to succeed to. The deceased had remained in the property until he died and was responsible for paying use and occupation charges but had no legal rights to enforce the contractual rights under the tenancy.
Mr Austin applied to Lambeth County Court to be appointed as representative of the estate with view to making an application under the Housing Act 1985 Section 85(2) to postpone the date for possession on the original order which would have the effect of restoring the tenancy.
The Court of Appeal rejected the appeal as it was bound by its earlier decision in Brent v Knightley where the Court ruled against a failed successor holding that the right to make such an application is not a personal right and cannot survive a person's death for the benefit of the estate.
The Supreme Court overruled Knighley and held that the right was a statutory right not a personal right and was capable of passing to the estate. This means that Mr Austin can make his application to revive the tenancy.
Having obtained permission from to appeal to the Supreme Court we reserved the right to argue that a secure tenancy does not end on breach of a suspended possession order but only on execution of the order. This was an important point. Had the Supreme Court ruled in our favour it would have the effect that secure tenants have never been tolerated trespassers. The Supreme Court reluctantly dismissed the argument because the Housing and Regeneration Act 2008 was now in force which gave former tolerated trespassers replacement tenancies as at 20 May 2009. The court felt that the principal held in the House of Lords decision in Thompson v Elmbridge had been acted upon in tens of thousands of cases and to now declare that Thompson was no longer good law would contradict the will of parliament.
The outcome of the appeal is that a person seeking to succeed to a tenancy who is prevented from doing so because the former tenant died as a tolerated trespasser as a result of a possession order made against them may apply to the County Court to postpone the date for possession in the old order and if successful the tenancy will be revived. If they also satisfy the necessary conditions to qualify as a successor then they will succeed to the tenancy.
Charlotte Collins is a solicitor in Anthony Gold's Housing & Public Law department. For further information email Charlotte or call 020 7940 4000.
