Charlotte Collins, Solicitor
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On 23 June 2010 the Supreme Court handed down judgment in the case of Austin v London Borough of Southwark[2010] UKSC 28. This case is the final chapter in relation to tolerated trespassers which should put the issue finally to rest.
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. The London Borough of Southwark granted the secure tenancy to Alan Austin in 1983. On 4 February 1987 a suspended possession was made. The order was made in the form of N28 and stated that it was not to be enforced so long as the deceased paid the arrears of £3312.98 by 4 March 1987. The deceased failed to comply with the terms of the order and on 4 March 1987 the order became enforceable. The council allowed him to live at the premises until his death in 2005. Barry Austin, who knew nothing about the possession order, approached the council with view to succeeding to the tenancy. This was the classic situation where even Alan Austin did not know he had lost the tenancy and had become a tolerated trespasser because the council had not told him and he had not had the benefit of any legal advice. Following service of a notice to quit, the council brought possession proceedings against Barry Austin as a failed successor with no legal rights to remain at the premises. Those proceedings were stayed pending determination of this appeal.
Mr Austin made an application pursuant to CPR 19.8 to be appointed as the personal representative of the estate of his brother in the possession proceedings. This was with view to making an application under Section 85(2) Housing Act 1985 so as to postpone the date for possession so that the tenancy could be restored. If there was a tenancy in place Barry Austin could defend the possession proceedings against him on the basis that he had satisfied the necessary conditions to succeed having lived with his brother for at least 12 months. Lambeth County Court held that CPR19.8 had no application and that an application under Section 85(2) could not be made after the death of the tenant.
The appeals to the High Court and the Court of Appeal were both dismissed. The Court of Appeal was bound by the decision in Brent v Knightley (1997) 29HLR 857 which held that a former tenant’s right to apply under Section 85 was a personal one which terminated on the former tenant’s death. That right could only be exercised by the tenant. The limitations placed on such a right by domestic law did not amount to an interference with, or a deprivation of a right for the purposes of Protocol 1, Article 1. As there was no right under national law to make an application under Section 85(2) after the death of a former tenant, Protocol 1, Article 1 was not engaged. Permission to appeal was granted.
The Supreme Court was asked to rule on the following:-
• Issue 1-Whether a secure tenancy ends at the moment when a tenant is in breach of the terms of a conditional suspended possession order so that the former tenant who continues in occupation becomes a tolerated trespasser.
• Issue 2- If a secure tenancy does end in this way does the former tenant’s statutory right to apply to postpone the date for possession and thus revive a secure tenancy under Section 85(2) of the Housing Act 1985 survive death and pass to the estate of the deceased’s former tenant?
• Issue 3-Is the statutory right to apply to the court under Section 85(2) a “possession”, the enjoyment of which is protected within the meaning of the European Convention on Human Rights, Article 1, Protocol 1?
• Issue 4-If it is such a possession, would a construction of Section 85(2) which holds that it determines on death amount to a deprivation of that possession contrary to Article 1, Protocol 1.
• Issue 5-If the statutory right to apply under Section 85(2) endures beyond the death of a former tenant was the late tenant a person who had an interest in a claim for the purposes of CPR 19.8 and if so what claim?
The appeal was heard on 21 and 22 April 2010 by Lord Hope, Lord Walker, Lord, Brown, Lady Hale and Lord Kerr. Jan Luba QC, and Desmond Rutledge of Garden Court Chambers represented the Appellant on the instruction of Anthony Gold Solicitors, Mr Richard Drabble QC of Landmark Chambers and Shaw Kelly of Staple Inn Chambers appeared for the local authority Respondent.
On Issue 1 the Appellant argued that a secure tenancy does not end on breach of the terms of a conditional suspended possession order but that a secure tenancy continues until the order is executed. If correct, this would mean that secure tenants have never been tolerated trespassers.
Housing Practitioners will know that the tolerated trespasser, a creature existing by way reason of judicial interpretation, has been the subject of extensive debate and this has been one of the most unsatisfactory areas of housing law since the decision in Burrows v Brent [1996] 1 WLR 1448, 1457. It was estimated that some 250,000 tolerated trespassers were created and left in limbo unable to enforce any of the contractual terms of the tenancy and with no obligation to behave in a tenant like manner.
The tolerated trespasser concept was subject to extensive reform by the Housing and Regeneration Act 2008 and the decision in Knowsley Housing Trust v White [2009]1AC 636, HL. The Act provides that former secure tenants still in occupation as at 20 May 2009 were to be granted automatic replacement tenancies on the same contractual terms as the original tenancy but without retrospective effect. In Knowsley the House of Lords held that assured tenants have never been tolerated trespassers. It was assumed that the issue of tolerated trespassers had been entirely resolved. However, Mr Austin’s situation managed to slip through the net. Failed successors were simply not contemplated either by parliament or the House of Lords in addressing the problems caused by the concept of the tolerated trespasser.
According to the Housing and Regeneration Act Impact Assessment it was estimated that 318 tolerated trespassers would die each year and that if just 50% were eligible to succeed then 159 of those would lose the right to succession.
In Knowsley the House of Lords indicated that if the case of a secure tenant had been before them for decision on the point, they might well have decided that a secure tenancy ended not on the date for possession stated in an order or on breach of a suspended possession order but only on execution of such an order, and until then continued. The House of Lords declined to deal directly with the issues in respect of secure tenancies. If they had it would have reversed Court of Appeal’s approach in Thompson v Elmbridge BC [1987] 1WLR 1425 CA and more recently in Harlow DC v Hall [2006] 1WLR 2116 in treating a secure tenancy as terminating on any date stipulated in the possession order.
In the present appeal the Supreme Court was asked to address the issue in respect of secure tenants. The Court had some interesting comments to make regarding the concept of the tolerated trespasser.
Lord Hope gave the leading judgment in the case and said that it was
“a remarkable fact that a conclusion about the meaning of Section 82(2) ,in Thompson v Elmbridge, which, admittedly with the benefit of hindsight is so obviously unsatisfactory and conceptually confusing should have been made with such little reasoning.”
He went on to favour Lord Neuberger’s reasoning that the tenancy ends only when the order for possession is executed on the basis that the words “is to give up possession” within Section 82(2) can be read as contemplating the date when possession will actually be given up under a warrant for possession which is duly executed or acted upon. However, Lord Hope was of course bound to consider whether it was appropriate to depart from the House of Lord’s previous decision in Thompson v Elmbridge. He was mindful that the effects of reversing the decision in Thompson are now incalculable as it has assumed to be right and acted upon in tens of thousands of cases. Further, he was concerned of the impact on social landlords in that they would be exposed to damages claims for failure to carry out repairs. This was of course one of the factors that led to the decision that the Housing and Regeneration Act 2008 should only amend the law prospectively.
Lady Hale states that in her view “had it not been for Parliament’s intervention, it would have been the duty of this court to set the matter right”. She went on to describe a tolerated trespasser as “an oxymoron, a trespasser being someone who should not be there, but tolerated trespassers were allowed to be there.”
Lady Hale gave examples of the obvious problems that the tolerated trespasser created, those who did not realise the order was breached, blameless tolerated trespassers due to the housing benefit system, neither landlord or former tenant able to enforce covenants under the tenancy agreement, the statutory scheme for determining rent did not apply, the trespasser could not exercise the right to buy even if arrears were cleared, and succession claims failed.
Lady Hale noted that following the various forms of order from pre 1993 N28, to the 1993 and 2001 versions the acquisition of trespasser status accidental rather than intentional and stated that:-
“All of this nonsense could have been avoided if a different construction had been put upon Section 82(2) of the Housing Act 1985. The whole edifice was built upon the extempore judgment in a two judge Court of Appeal in Thompson.” She went on to say that “Were it not for the Housing and Regeneration Act 2008 she considered that it would be right for the court to sort the matter out. The decisions in Thompson and the cases which proceeded on the unquestionable basis that Thompson was correct not merely wrongly decided. They set the law on a course which was wrong in principle and wrong in practice. They produced a position with which no one was happy- neither the landlords nor the tenants- as is shown by the response to the Government’s consultations.”
Lord Walker expressed his admiration for the concurring judgment of Lady Hale describing her judgment as “the definitive obituary of the tolerated trespasser”.
The Supreme Court reluctantly dismissed the appeal on Issue 1 on the basis that the Housing and Regeneration Act 2008 was now in force and to declare that Thompson was no longer good law would contradict the will of parliament.
The court found for the Appellant on the second issue and allowed the appeal overturning Brent v Knightley. Lord Hope held that “Section 85(2) states that the powers that it refers to are said to be exercisable at any time before the execution of the order. The possibility that the tenant may have died in the meantime is not mentioned. If it had been the intention of parliament that the powers should not be exercisable on death it would have been easy to say so and when the act contemplates what is to happen on death it says so at Sections 87 to 90.”
Having found for the Appellant on issue 2, issues 3 to 5 did not need to be decided.
The Appellant will now make an application under Section 85(2) to Lambeth County Court to postpone the date for possession stated in the 1987 order. If successful and he is accepted as having satisfied the necessary conditions he will succeed to the tenancy.
The outcome of this appeal is that a person who failed to succeed to a secure tenancy because their relative had died as a tolerated trespasser may now make a simple application to the court under Section 85(2) of the Housing Act 1985 to postpone the date for possession. If successful, then providing they can satisfy the conditions that they are a person entitled to succeed being “the tenant’s spouse, civil partner, or another member of the tenant’s family and has resided with the tenant throughout the period of 12 months ending with the tenant’s death unless the tenant himself was a successor.”
During the course of this appeal I have been contacted by numerous firms around the country. I have been told of several similar cases some of which are issued possession claims stayed pending the outcome of this appeal, some people have received a notice to quit. Those people all placed considerable reliance on succeeding to a tenancy and were then dealt the blow that an old possession order has been found and because of a technicality they cannot succeed because their dear relative was some sort of trespasser. They are also told that they themselves are now an unauthorised occupier and are expected to leave. The bereaved relative then has to await the notice to quit arriving through the door in amongst the sympathy cards and then contemplate being made homeless. Those people, however, small the class of people will be able to now make their applications to the County Court to restore the former tenancy and I wish them all the best of luck in their applications.
Charlotte Collins of Anthony Gold Solicitors is the solicitor for Barry Austin. For further information email Charlotte or call 020 7940 4000.
