The Supreme Court have heard what is probably the final tolerated trespasser case - Austin v Southwark LBC. Judgment was given on 23 June 2010. The right of a tolerated trespasser to apply to revive their tenancy did pass and could be exercised after their death.
Background:
Mr Austin had lived with his brother, the tenant, in a Council flat. His brother had become a tolerated trespasser for a lengthy period of time after failing to comply with the terms of a suspended possession order.
When his brother died Mr Austin applied for permission to represent his brother’s estate in the old possession proceedings. The point of such an application was that if he was appointed he could then apply to revive his late brother’s tenancy by postponing the date for possession. He would then be entitled to succeed to the tenancy. Mr Austin was unsuccessful in the County Court, High Court and Court of Appeal, which held that the right to apply to revive could not be exercised after the death of the tenant.
In the Supreme Court it was argued that the whole concept of tolerated trespassers in relation to secure tenancies should be overturned. This was despite the House of Lords specifically being asked not to do this in the Knowsley Housing Trust v White case which abolished the concept of tolerated trespassers in the assured tenancy regime in December 2008.
Decision:
The Supreme Court held here that they would have overturned the previous case law on secure tenants becoming tolerated trespassers if it had not been for Parliament intervening through the Housing and Regeneration Act which introduced replacement tenancies. The Supreme Court took the view that as Parliament had decided, following a consultation, not to retrospectively abolish tolerated trespassers, but only to abolish them in the future and to reinstate tenancy status via replacement tenancies, then the Court should not undermine that system. To do so would contradict the will of Parliament.
Otherwise however, it found that the late brother’s right to apply to revive his tenancy did survive his death for the benefit of his estate. As a result Mr Austin was given permission to represent his brother’s estate so the application for revival could be made. The case was sent back to the County Court for consideration of whether the date for possession should be postponed on the possession order or not.
Any Action Required?
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This case is of significance for landlords of secure tenants, and is also relevant to stock transfer landlords where tolerated trespassers transferred and were not offered new tenancy agreements to sign.
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A challenge could be bought if a landlord (of a secure tenant) refused a succession application by a partner or family member, after the death of a tolerated trespasser but before replacement tenancies were introduced on 20 May 2009.
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Stock transfer landlords should remember that transferring tolerated trespassers are not automatically subject to the same terms and conditions as other transferring tenants once a replacement tenancy came in force on 20 May 2009. A simple variation exercise can be undertaken to ensure the tenancy terms are consistent with other tenants. This would then make procedures such as rent increases/decreases and service charge increases and changes the same for all such tenants. We offer a fixed fee package to enable that variation to take place if you have not already done so.
Please contact Helen Tucker (helen.tucker@anthonycollins.com) or Emma Duke (emma.duke@anthonycollins.com) for more details.