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The problem of the tolerated trespasser to be removed in all cases
3 March 2009
The government has been looking closely at the tolerated
trespasser regime and has been consulting on ways to reduce its
impact.
The results of one of these consultations, “Consultation on
Tolerated Trespassers: Successor Landlord Cases”, was published on
9 March 2009.
The problem
Prior to the Housing and Regeneration Act 2008 coming into
force, secure, introductory, demoted, and until recently, assured
tenants became tolerated trespassers when a Suspended Possession
Order was granted and the tenant breached the terms of the
order.
This poses disadvantages to both landlords and tenants.
Landlords are unable to enforce contractual conditions against
tolerated trespassers and there is a lack of clarity about whether
the landlord could charge normal rent increases. From the position
of the tolerated trespasser, they have lost their tenant’s rights,
including the right to bring a claim for disrepair at the property,
and are vulnerable to higher rent increases than other tenants.
The position regarding assured tenants
Assured tenants were recently taken out of the tolerated
trespasser regime as a result of the House of Lords decision in
Knowsley Housing Trust v White [2008] UKHL 70 which confirmed that
an assured tenancy, subject to a suspended possession order, did
not come to an end until possession was physically delivered
up.
Accordingly, an assured tenant will not become a tolerated
trespasser at the point when the terms of a suspended possession
order are breached.
Housing and Regeneration Act 2008
The Housing and Regeneration Act 2008, amongst other things,
deals with the problem of tolerated trespassers where there has
been no change of landlord.
Part 1 of Schedule 11 of the Act ensures that no new tolerated
trespassers arise in the future by specifying that the tenancy ends
when the court order for possession is executed.
Part 2 of Schedule 11 provides for replacement tenancies to be
issued to those who are, at present, tolerated trespassers.
Providing the property is the tolerated trespasser’s only or
principal home, they will be granted a new tenancy which will be,
substantially, subject to the same terms and conditions as the
original tenancy and, have the same status as the original tenancy.
The new tenancy will, however, be subject to the possession order
and therefore if the order is a suspended or postponed order the
tenant must comply with the terms of the order. If the tenant fails
to comply with the terms of the possession order, the landlord may
apply for a warrant, which, if executed, will bring the tenancy to
an end.
Currently, Schedule 11 does not apply to cases where there has
been a change of landlord during the ‘termination period’ (the
period in which the tenant has become a tolerated trespasser) and a
new tenancy has not been offered by the landlord. This situation
arises, for example, where a local authority transfers its housing
stock to a registered social landlord under a Large Scale Voluntary
Transfer.
It is these ‘successor landlord’ cases for which the government
sought consultation from the housing sector.
The consultation
The government received 18 responses to the consultation which
were unanimously in favour of tolerated trespassers having their
status restored as tenants following a stock transfer. The main
reasons given for this were:
- To ensure fairness, certainty and consistency – tolerated
trespassers in successor landlord cases should be treated in the
same way as those whose landlords have not changed.
- It would be contrary to the unanimous opinion of the House of
Lords in Knowsley Housing Trust v White [2008] UKHL 70 to seek to
maintain the tolerated trespasser doctrine in any
circumstances.
- If tolerated trespassers retained this status in successor
landlord cases it could lead to challenges under Articles 8 and 14
of the Human Rights Convention. In remedying the position it would
also avoid the legal complications associated with the existence of
tolerated trespassers.
- It would also remove the costs and inconveniences for landlords
in operating a separate management system for tolerated
trespassers.
The replacement tenancy will only apply if no new tenancy has
been granted prior to the transfer of housing stock and no
proceedings have been brought for eviction.
The government has endorsed the response and will introduce
secondary legislation that will take effect along with Parts 1 and
2 of Schedule 11 shortly.
The introduction of secondary legislation will clearly have
benefits to both landlords and tenants. The removal of the
tolerated trespasser regime will simplify this element of the
landlord and tenant relationship and will avoid the risk of
litigation if the situation regarding tolerated trespassers in
successor landlord cases remained a loophole.
There is no logic in having a different tenancy status merely
because the landlord has changed. The government’s objective of
ensuring the new tenancy is as close as possible to the original
tenancy, in line with Parts 1 and 2 of Schedule 11 of the Act.
When the regulations have been drafted we will provide an update
to this bulletin.
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of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
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