In two recent cases, the Court of Appeal has revisited the legal fiction of the ‘tolerated trespasser’, a much criticised creation of the House of Lords in Burrows v Brent London Borough Council [1996] 1 WLR 1448. Although the tolerated trespasser has lost the benefits of a secure tenancy, the former tenancy is capable of being revived by a further order of a court varying the date of possession under section 85(2) of the Housing Act 1985 (‘the Act’) or the court discharging or rescinding the order of possession under section 85(4) of the Act.
A tenancy does not revive automatically once the arrears have been paid off (Marshall v Bradford Metropolitan District Council [2002] HLR 22, 428). In cases where the entire judgment debt including court costs has been paid off, a court has no power to revive a tenancy under s. 85(2) of the Act, nor can it rescind a possession order under s. 85(4) if the Defendant has not complied with the conditions a court may impose under s. 85(3) of the Act (Swindon Borough Council v Aston [2003] HLR 42, 610). In Bristol City Council v Hassan [2006] 1 WLR 2582 the Court of Appeal responded to unease about tenants being propelled into a state of limbo, sometimes through no fault of their own, by creating the postponed possession order.
In London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326, which concerned the argument that issuing new possession proceedings amounted to an abuse of process where a previous possession order had been made, the Court of Appeal clarified the implications of Swindon v Aston.
Ms Ansell was granted a secure tenancy on 8 September 1987. On 19 February 2001 a suspended possession order was made against her. The order referred, among other matters, to monies due, the payment terms and the fact that, once Ms Ansell had paid off the entire amount, the order would cease to be enforceable. Ms Ansell breached the terms of the order soon after it was made. Subsequently, due to an unexpectedly early housing benefit payment, she managed to pay off the monies due under the order, including court costs, and on 26 October 2004 her rent account went into credit.
On 10 February 2006 the Housing Trust commenced new possession proceedings against Ms Ansell on the grounds of anti-social behaviour. The Trust started new proceedings because it took the view that the possession order of February 2001 was no longer enforceable. Ms Ansell argued that, because a previous possession order was in existence and still enforceable, it was an abuse of process to issue new possession proceedings. In order to enforce the 2001 possession order, Ms Ansell submitted, a warrant of possession had to be issued and executed. The judge at first instance came to the conclusion that he was entitled to make an order for possession because the February 2001 order had ceased to be enforceable, as all the monies due under the order, including costs, had been paid.
On appeal, it was common ground between the parties that Ms Ansell was a tolerated trespasser. The issue to be determined by the Court was whether it was open to the Trust to commence new proceedings on the basis that Ms Ansell’s occupation as a trespasser was no longer tolerated and that she therefore had no right to remain in occupation. The Court held that if a court’s powers under section 82(2), (3) and (4) of the Act – the extended discretion of a court to postpone a date of possession and to stay or suspend an order for possession – had still been exercisable, the proceedings would indeed amount to an abuse of process. However, Ms Ansell’s case was indistinguishable from Swindon BC v Aston [2003] HLR 42, 610: the powers under s. 85 of the Act were no longer exercisable when the present proceedings were commenced because, in paying off both her arrears and court costs, Ms Ansell had complied with the terms of the February 2001 order, and it had ceased to be enforceable. It followed that the Trust’s new proceedings against Ms Ansell were not misconceived and that the judge had been correct in making an order for possession.
In the course of argument, the court was invited to deal with the Claimant’s contention that she was a permanent tolerated trespasser and that the Trust could take no step to bring her occupation of her property to an end. The Court firmly rejected such an argument, holding this would, in effect, amount to Ms Ansell being irremovable in law. There was no ‘legislative policy’ compelling such a result.
The Court expressed unease that, following Swindon v Aston, Ms Ansell had lost the protection afforded under s. 85(2) of the Act because the whole of her monies due under the February 2001 order were paid off without her concurrence or knowledge by changes in the payment pattern of her housing benefit payments. The Court took the view that Swindon v Aston provided a ‘trap for former tenants and their advisers’ who comply with the order without first making an application to the court to revive the tenancy under s. 85(2) of the Act. This problem was compounded by the fact that unless the former tenant had strictly complied with the terms of the order, s/he could not seek rescission of the order under s. 85(4). Even though the Court accepted that Swindon v Aston provided a route whereby a new tenancy could come into existence, any new tenancy would not be a secure tenancy. Further, even though making a possession order in the terms suggested in Bristol v Hassan could avoid the problems which arose in Ms Ansell’s case, the Court expressed the view that it was desirable for both landlord and the former tenant to revert to the ‘position’ prior to the order being made, or taking effect, and for the court to continue to be able to exercise its discretionary jurisdiction under s. 85.
White v Knowsley Housing Trust [2007] EWCA Civ 404, which falls under the Housing Act 1988, highlighted the increased number of tolerated trespassers resulting from this regime. The Court of Appeal has held that where a possession order is made using the ‘old’ Form N28, the tenancy came to end on the date an assured tenant had to give up possession, even though the order may have been suspended, echoing last year’s decision in Harlow DC v Hall [2006] 1 WLR 2116 relating to secure tenancies.
The Court was alive to the problems that arise when a secure tenant becomes a tolerated trespasser, such as neither the former landlord nor the former tenant being able to enforce the covenants of the former tenancy, even though the occupier remains in a tenant-like condition.
In view of the many criticisms that have been levelled at the tolerated trespasser, and which led to the creation of the postponed possession order in Bristol v Hassan, it is surprising that in this judgment the Court appears to express unease that in Bristol v Hassan the arguments against the tolerated trespasser had been accepted without considering whether there should be situations where a tenant loses the benefit of a secure tenancy. In White the Court emphasised that the arguments do not go all one way. It would be problematic if, despite having defaulted on her obligations as a tenant, Mrs White retained the benefits and privileges of a tenant. Policy did not dictate such an outcome.
White may be seen as indicating that, despite all its shortcomings, the ‘tolerated trespasser’ continues to be seen as an appropriate sanction for breaches of the tenancy agreement. The difficulty is determining the precise scope of this sanction, pending reform or even abolition of a problematical legal fiction.
Barbara Zeitler
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