District Judge Tim Parker looks at recent developments that throw up some difficult questions on tolerated trespass


Two recent Court of Appeal judgments on tolerated trespass deserve attention: London and Quadrant v Ansell [2007] EWCA Civ 326, [2007] All ER(D) 149 (Apr) and White v Knowsley Housing Trust [2007] EWCA Civ 404, [2007] All ER(D) 38 (May). It may be time to recap.



A good starting point is Burrows v Brent LBC [1996] 4 All ER 577. Ms Burrows was a secure tenant of the London Borough of Brent. She fell into rent arrears. Brent obtained an outright possession order in January 1992, but in February agreed that she could stay put if she paid the rent and a weekly amount towards the arrears. In 1994, Brent issued a possession warrant and she was evicted. She applied for an order declaring that the February 1992 agreement gave rise to a new tenancy which had not ended, and that she should be readmitted to the flat.



This argument failed in the House of Lords. It was held that the February agreement had not created a new tenancy: Ms Burrows' continued occupation had been not as a tenant but as a tolerated trespasser. The reasoning was this:

l Where the landlord obtains an order for possession, a secure tenancy ends on the date on which the tenant is to give up possession in pursuance of the order (section 82(2) of the Housing Act 1985);

l On the making of a possession order against a secure tenant on discretionary grounds, the court may at any time before the execution of the order postpone the date of possession (section 85(2));

l If the court postpones the date of possession, the original secure tenancy revives; and

l From February 1992, Ms Burrows' tenancy was in limbo. Until the possession warrant was carried out, revival was possible. Her continued occupation of and payment for the flat was referable to the original tenancy.



Tolerated trespassers lack rights regarding (for example) repairs, succession, mutual exchange or the right to buy. For a complete list of the problems, see Bristol CC v Hassan [2006] EWCA Civ 656, [2006] 4 All ER 420.



Suspended orders often create tolerated trespassers. A single breach of the conditions of suspension is enough, regardless of fault. The standard form of 'suspended' order introduced in 2001 and current until mid-2006 was so worded that it ended the tenancy without any breach at all, Harlow DC v Hall [2006] EWCA Civ 156, [2006] All ER(D) 393 (Feb).



The Court of Appeal in Bristol v Hassan approved what is now widely known as a postponed possession order (form N28A). This does not terminate the tenancy on breach. If a breach occurs, the landlord can apply for a date for possession. No hearing is normally needed: see section IV of practice direction 55 of the Civil Procedure Rules. Only once the date for possession has passed does the tenant become a tolerated trespasser.



The new cases



(1) Does tolerated trespass apply to assured tenancies too?



Yes. See White v Knowsley Housing Trust. The Court of Appeal did not accept that the omission from the Housing Act 1988 of an equivalent to section 82(2) of the 1985 Act altered the position.



Giving the leading judgment, Lord Justice Buxton said that postponed possession orders could equally well be used for assured tenancies, and that section IV of PD 55 of the rules should be extended urgently to include them.



A suggestion that the original order made by District Judge Sykes could be retrospectively amended to a postponed possession order was given short shrift. It is difficult to disagree with Lord Justice Buxton's description of the submission as 'startling'.



(2) What if all the arrears are paid?



This was the question in London & Quadrant v Ansell. Ms Ansell was a secure tenant of L&Q (secure, not assured, because granted before 15 January 1989). In 2001, a possession order was made on grounds of rent arrears and suspended on terms that she paid current rent plus £2.65 per week. It stated she should pay L&Q £1,169.15 for arrears and costs, and added: 'When you have paid the total amount mentioned, the claimant will not be able to take any steps to evict you as a result of this order.'



Ms Ansell breached the order, thus becoming a tolerated trespasser. In October 2004, a large payment was made which entirely cleared the arrears and costs. In 2006, L&Q brought fresh possession proceedings.



The Court of Appeal upheld a possession order. The original order had ceased to be enforceable. Thus, there was no longer power under section 85 of the Housing Act 1985 to stay or suspend its execution, or to postpone the date of possession. Nor could the court discharge or rescind the original order, as the conditions attached to it had not been complied with. It was therefore impossible for Ms Ansell's tenancy to be revived and she had no defence to the second possession claim.



This is an odd result. If she had remained in arrears, Ms Ansell could have applied to revive her tenancy. She was penalised because the arrears had been paid in full.



Ansell follows Swindon BC v Aston [2002] EWCA Civ 1850, [2002] All ER(D) 325 (Dec), but Mr Aston kept his home. He established that his and his landlord's conduct after the possession order became unenforceable was only referable to the existence of a new tenancy. It could not relate to the old tenancy (as in Burrows) because that tenancy was irretrievably lost.



This argument offers hope to tenants caught in the Ansell trap, but has its difficulties. A new tenancy has to be made out, and what type of tenancy will it be? If the landlord is a local authority, it will be secure just as the old one was. But if the landlord is a registered social landlord, the old tenancy will either have been secure or assured. The new tenancy will only be an assured shorthold (section 19A of the Housing Act 1988).



The appeal court in Ansell was uneasy with the conclusion it reached. While the law remains in its present state, tolerated trespassers should not pay off all their arrears and costs without checking the terms of the possession order.



If the order provides that it will cease to be enforceable once all sums due are paid, they should ask the court to revive the tenancy before clearing the account.



District Judge Parker sits at Slough County Court