Why the classification of tolerated trespassers can no longer be tolerated

Article

20 March, 2008

A survey carried out by a leading Housing magazine has revealed the extent to which some tenants living in social housing have lost rights to their properties having been declared tolerated trespassers.

Inside Housing has discovered that as many as one in five tenants in some areas of the country have been effectively labeled as trespassers in their own homes following the grant of a possession order by the courts to their landlords.

What is a tolerated trespasser?

The law states that a landlord can seek to obtain a possession order against a tenant for breach of a term of the tenancy agreement, for example, failing to pay off rent arrears.

In the past the courts have chosen to grant either an Outright Possession Order fixing an immediate date for possession or a Suspended Possession Order (SPO) which orders the tenant to satisfy certain terms that would remedy the breach, for example, paying off the rent arrears in instalments over a period of weeks.

In the case of Outright Possession Orders, the tenant will become a trespasser if the tenant continues to reside in the property after the date fixed for possession, even if he has the landlord's permission to do so. They forfeit their security of tenure and both the landlord and tenant are no longer bound by the terms of the tenancy. Thus the tenant loses all the rights expressed in the agreement.

Although Suspended Possession Orders fix a date for possession, they differ from Outright Orders in that they are not enforceable if the tenant complies with the terms. So, if the tenant keeps up with the weekly repayments, his landlord can't rely upon the Suspended Possession order to evict him.
However, Suspended Possession Orders do not circumvent the problems associated with the classification of tolerated trespassers. If anything they add to the problem!

The answer to the question as to whether a Suspended Possession Order creates a tolerated trespasser depends upon the wording which the judge chose to use.

On the one hand a judge may have wished to word the Suspended Possession Order so as to read "the date fixed for possession is A/B/C, suspended on the terms that the tenant pays £X towards the rent arrears each week". Here, it is the date for possession which is suspended. So, although the earliest date for possession is stipulated, the date will be continually suspended until the point of the first breach upon which it will immediately crystallise.

Thus if the tenant fully complies with the terms of the order and no default occurs then he will keep his tenancy. However, if the tenant defaults – for example, misses a payment – then the moment the breach occurs, no matter how small or trivial, the order is enforceable from that point forward and the tenant is regarded as a tolerated trespasser. Even if the tenant continues to settle the rent arrears and the full amount is paid off, he will remain a tolerated trespasser and will not regain his status as a tenant.

Alternatively a judge may have chosen to break up the wording to include two separate clauses: the first stipulating the fixed date of possession i.e. "the date fixed for possession is A/B/C" and the second setting out the terms which must be adhered to i.e. "the defendant must pay off £X towards the rent arrears each week." Here, it is the enforcement of the order which is effectively suspended. Although the tenant can only be evicted if he breaches the tenancy, the tenant will become a tolerated trespasser once the date has lapsed – regardless of whether he breaches the terms of the tenancy agreement. So, although the landlord can't use the Suspended Possession Order to seek possession, the tenant still suffers the loss of the rights afforded under the tenancy agreement. Essentially, even where a tenant pays off what they owe in full, they don't automatically get their tenancy back.

The question of which category, if any, the tenant falls into is a matter of difficult legal interpretation and professional advice should always be sought.

It is the scenarios where the tenant complies with the terms of the Suspended Possession Order, regardless of the occurrence of what could be excused as minor breaches, which many commentators consider to be unjust. Particularly where the order is worded so as to make the tenant a tolerated trespasser, even without any breach of terms!

In light of their loss of rights, anecdotal evidence suggests that the way in which these class of 'tenants' are treated varies greatly from housing association to housing association. In fact the current climate resembles something akin to a lottery in determining whether they are treated equally or less favourably to other secure or assured tenants.

But ultimately all are at the mercy of their landlords. Today's tolerated trespassers live on a knife edge, relying upon the goodwill of their landlords and the courts in the absence of any vested rights in their tenancy.

In some cases, tenants declared to be tolerated trespassers no longer have a say in what the future holds for their homes. It has been discovered that in ballots to decide issues such as to whether local authorities should set-up arms-length management organisations or transfer housing stock to housing associations, some tolerated trespassers found themselves excluded from voting.

What can be done to solve the problem?

In August 2007 some progress was made towards addressing this issue. The Communities and Local Government department prepared a consultation paper, which invited recommendations of reform in this area of law. This has led to the creation of a new type of order, the Postponed Possession Order, which will take the place of Suspended Possession Orders in terms of all future possession applications.

The Postponed Possession Order has attempted to solve the problem of the tolerated trespasser by excluding a date for possession. Rather, once the terms have been breached the landlord can apply to the court to have a date fixed for possession. The absence of a date in the wording of the order means that the tenant will not lose his status until the landlord is forced to seek eviction. However, whilst the Postponed Possession Order goes some way towards alleviating the problem of Tolerated Trespassers, it does not provide a definitive answer in respect of existing tolerated trespassers or those tenants made trespassers following the award of an Outright Possession Order. In fact, no such clear cut decision was reached as to what should be done with regards to the existing tolerated trespasser. Rather four proposals have been made:

  1. do nothing;
  2. amend the 1985 and 1989 Housing Acts to deal with tenants subject to future possession orders;
  3. amend the 1985 and 1989 Housing Acts to deal with tenants subject to future possession orders and restore tenancy status to all existing tolerated trespassers; or
  4. amend the 1985 and 1988 Housing Acts to restore tenancy status to existing compliant tolerated trespassers and deal with future tolerated trespassers.

Given the nature of the issue, the first proposal is unlikely to be seen as a serious option. However, the problem remains with the government as to how best to resolve the situation in a way which satisfies both the landlord and tenant. Proposal 2 would greatly favour the landlord but, in simply preventing any new trespassers being created, would fail to address the plight of existing tolerated trespasser. Proposal 3 lies at the other extreme and would totally eradicate the category of tolerated trespasser, however creates a new set of problems by granting tenants retrospective rights which could lead to an influx of litigation. In fact, even an attempt to strike a balance by opting for proposal 4 could cause problems. Who would decide who was compliant and non-compliant? Surely any onus on the social landlord to do this would lead to burdensome administration.

Watch this space…

The current legal position on tolerated trespassers is due to be reconsidered when the latest appeal in the case of Knowsley Housing Trust v White (the case which gave rise to the most recent decision of the Court of Appeal in this area) is decided. The ruling may serve to confuse matters further or may finally bring some clarity to the current problems. Whatever the decision, most commentators are in agreement that a fresh approach is needed to redress the problems associated with tolerated trespassers.

For further information please contact Stuart Penswick, Lachlan McLean or Sam Gorrell in the Housing Litigation team on 01772 220022.

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