The end is nigh for tolerated trespassers

Article

06 May, 2008

The Housing & Regeneration Bill 2008 signals the death knell

The latest incarnation of the Housing & Regeneration Bill currently passing through Parliament appears set to remedy the problems caused by the classification of tolerated trespassers. Tolerated trespassers are those tenants who lose their tenancy rights after a possession order is made against them.

Housing commentators across the country will be mightily relieved at the prospect of such a valuable change in the law. The changes, that have been put forward, which many will feel are long overdue, appear sensible in respect of the legal anomalies caused by tolerated trespassers.

In attempting to abolish the concept of tolerated trespassers, the Communities and Local Government department has elected to follow a three step strategy:

  1. NOT CREATING TOLERATED TRESPASSERS IN THE FUTURE

    This is to be done by amending the Housing Acts 1985, 1988 and 1996 in order that social tenancies will be ended not when the possession order gives a date for possession (i.e. as is currently the case with s.82(2) HA 1985 for secure tenancies and extended by Knowsley v White for assured tenancies), but instead at the point at which the order is executed (i.e. the date of the eviction).

    Interestingly, this amendment will also affect assured shorthold tenancies, which would end not on the date in the order but upon execution. The same rules will apply to introductory tenancies and demoted (ex-secure) tenancies.
  2. ALLOWING TENANCY STATUS TO BE MORE EASILY RESTORED

    This would allow "culpable-but-reformed" tolerated trespassers (i.e. those who may have breached conditions in the past but have since taken steps to remedy their behaviour) to have their tenancy revived. Previously s.85(4) HA 1985 and s.9(4) HA 1988 would have prevented this if conditions on an Suspended Possession Order had at any time been breached.
  3. AWARDING OF REPLACEMENT TENANCIES TO MOP UP THE REMAINDING 'MESS'

    Those "ex-tenants" whose assured, secure, introductory or demoted tenancies were ended by a possession order but not by execution of the order will all have a new "Replacement Tenancy" (the nature of which - i.e. secure, assured, etc - is dealt with by a further section). Any possession order which ended the tenancy is to be treated as if it applied to the new tenancy except, of course, that it no longer ends the tenancy - but just regulates it.

The proposed reforms follow the Communities and Local Government's Impact Statement, published in 2007, with the government department electing to implement the most extensive and radical option of the four presented in last year's consultation. The statement set out the basis for the proposed legislative change and expressed an aim to "remove the problems which the tolerated trespasser doctrine has caused for landlords and tenants by ensuring that tolerated trespassers are not created in future, and by restoring tenancy status to existing tolerated trespassers."

This Impact Statement is briefly summarised at page 265 of the Communities and Local Government's impact assessment.

As with any new legislation, there is a lot more comment that can and no doubt will be made through further articles, bulletins and correspondence. This will undoubtedly have a huge impact on housing associations, creating more administrative work both in restoring tenancies and in the potentially numerous right to buy and disrepair applications. However, from a theoretical perspective, the Housing & Regeneration Bill has finally provided an answer to a long-standing problem. Whilst the bill has yet to be ratified, commentators eagerly await the awarding of Royal Assent which should hopefully consign to history the category of tolerated trespassers as a thing of the past.

Peter Marcus, Barrister

Peter specialises in all aspects of public and private housing and landlord & tenant law. Before taking up the law, Peter worked for the Joseph Rowntree Foundation as a national housing policy and practice advisor, before which he was housing and regeneration manager at the London Borough of Camden. He also teaches on the BPP Law School's GDL conversion course (Tort and Constitutional & Admin law), is on the board of several voluntary sector charities and housing organisations, and gives frequent seminars and conference talks on housing and public law.

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