Painsmith Landlord and Tenant Blog

A practitioners landlord and tenant law blog from PainSmith Solicitors

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.

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Smoke Control in Wales

From 31 December 2008 the The Smoke Control Areas (Exempted Fireplaces) (Wales) Order 2008 has introduced certain exemptions to the Clean Air Act 1993 in Wales.

This allows that certain types of stove, mainly wood-burners are exempt from this legislation because they are particularly clean-burning.

From a landlord’s point of view it might be worth considering fitting one of the exempted stoves if refitting is being contemplated. In tandem with this it will be important to have a clause in the tenancy agreement to ensure that the tenant burns the appropriate fuel.

On a wider point where a property with a stove is being let it is important that a clause is inserted in the lease to specify the burning of the correct type of fuel. Many stoves are limited in what they can burn and will be damaged if the wrong fuel is used. It will be hard to make a claim for what is an expensive item if such a clause has not been inserted.

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Spotting Drug Production

Tessa Shepperson’s blog has a very useful post on telltale signs of drug production in rental properties along with a link to a new booklet on the subject produced by Suffolk Police. More information here.

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