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The End of the Tolerated Trespasser

Where a suspended possession order is granted by the court but suspended on terms there has been a problem in the past. The reason for this is that the Court order has the effect of ending the tenancy but prevents eviction of the tenant as long as they comply with the terms of the order. The result is that the tenant becomes a, so-called, ‘tolerated trespasser’ on the date of possession as stated on the order. A tolerated trespasser is a peculiar legal fiction which denotes that the former-tenant has lost ther tenancy rights thereby making them a trespasser but cannot be removed from the property hence the use of the word tolerated (admittedly a rather strained use!).

The loss of tenancy rights has some rather bizarre consequences such as an inability for the tenant to enforce repairing covenants against landlords and the landlord losing the right to rely on the relevant Housing Act provisions and the tenancy agreement itself. So the landlord’s ability to increase the rent, for example, is also affected.

However, the House of Lords has eliminated this problem by holding in the cases of Knowsley Housing Trust (Respondents) v White (FC) (Appellant) Porter (FC) (Appellant) v Shepherds Bush Housing Association (Respondents) [2008] UKHL 70 that the tolerated trespasser is indeed a fiction and does not exist.

In Knowsley they allowed White’s appeal against the decision of the Court of Appeal that her assured tenancy had come to an end when she failed to comply with the terms of a suspended possession order. The Lords held that assured tenancies only came to an end when the tenant either voluntarily gave up possession or when they are evicted pursuant to an order. Therefore an assured tenant cannot become a tolerated trespasser.

This could be a problem where a landlord with a previously assumed tolerated trespasser has taken advantage of their status by refusing to repair the property. As the status cannot now have ever arisen these reinstated tenants will have a claim for disrepair against their landlords.

The situation will become a lot clearer when the Housing and Regeneration Act 2008 comes into force. The Act received Royal Assent on 22 July 2008. Schedule 11 of the 2008 Act makes amendments to the Housing Act 1985, Housing Act 1988 and the Housing Act 1996 to prevent the tolerated trespasser arising by stating that a tenant’s assured or secure tenancy does not end until the landlord has obtained a Court Order for possession and the eviction has actually taken place. Existing tolerated trespassers still in occupation of their original properties as their only or principle home, have had their tenancy status reinstated by virtue of “replacement tenancies”, which reinstate the tenant’s rights and obligations of the tenancy they held prior to the Possession Order coming into effect. The possession order itself will remain enforceable against the new tenancy.

5 thoughts on “The End of the Tolerated Trespasser”

  1. It is only assured tenancies that are affected by Knowsley v White, as I understand it,not secure.

    Most (ex)secure tolerated trespassers will get ‘replacement’ tenancies on 9 April 2009 under the Housing & Regeneration Act, but it isn’t clear yet what will happen where landlords have changed – stock transfers etc. – and in any event, they will not get a retrospective right to bring a disrepair claim or obtain RTB discount without an application to the Court. Sadly the mess isn’t quite over yet.

  2. hi all, just wanted to express my frustration , it now the 21 st of may and still no sign on this senseless law being abolished! i have been living with all my property boxed up for months now waiting for the council to allow me to do an exchange , only it wont be allowed until this law is changed .i wnder if this will ever happen now that the mp,s have made all these fraudulent claims on their expences im sure abolishing this law will now be the last thing on the agenda . i am fed up with waiting and fed up with the government not doing what they are payed to do.

  3. I have only just dicovered this website today, 27 January 2010.

    I have been a so-called tolerated trespasser for a number of years now through rent arrears that were caused by no fault of my own (housing benefit errors when I was unemployed at the time.) I should really have an assured tenancy with a retained right to buy because my tenancy started in 1988 with my local council until a Housing Association bought all stock from the council in the 1990s.

    I have had no rent arrears for years right up to the present day but still have the outstanding possession order against me as far as I know.

    I have not been contacted by my H.A. Could you please tell me if the law has now changed and abolished ‘tolerated trespassers’? Am I now an assured tenant once again with retained right to buy? And what about the outstanding possession order against me – can I do anything about that?

    Thank you for your help. I need it desperately.

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