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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 tenants 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 trespassers 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 governments 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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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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