Secure Tenancies cannot be revived upon Death of Tolerated Trespasser


17 February, 2009

The recent Court of Appeal decision in Austin v Mayor & Burgess of Southwark London Borough Council [2009] EWCA Civ 66, has held that the right to apply to revive a secure tenancy under the Housing Act 1985 was not available on the death of the former secure tenant. This finding may inevitably be of significance to landlords and tenants alike.

The Facts

The appellant in the case (U) was appealing against an earlier court decision which determined that he could apply for a review of the secure tenancy to which he could have succeeded, had it been in existence at the time of the death of his brother (S). S had been a secure tenant of Southwark LBC and had become a tolerated trespasser after he failed to comply with the conditions set out in a possession order against him. He continued to live in the property until his death with U.

Before his death, S could have applied for an order under the Housing Act 1985 to postpone the date of possession, but had not. If this had been done, the secure tenancy could have been 'revived' retrospectively. Therefore, had S's tenancy been existing in some form at the time of his death, U could have succeeded to the tenancy as a member of his family, under the Act.

U applied under the Civil Procedure Rules to be joined to the possession proceedings that led to the loss of S's tenancy in order to represent S's estate and as its representative, exercise the right to apply to the court for the revival of the tenancy. The county court judge held that no such application could be made after S's death.

On appeal, it was held that the right to apply in such circumstances was not a right of property and thus there could be no deprivation of property within the European Convention on Human Rights 1950 Protocol 1 art. 1. U submitted that a person may apply under the Housing Act even after the death of a former tenant. The local authority argued that this right was not an interest in land and therefore could not survive after a tenant's death.

The Court of Appeal

In its judgement, the Court of Appeal made a number of salient points on the issues in the case:

  1. The provisions of the Civil Procedure Rules apply where a person who had "an interest in a claim" had died. The previous judge had been right to hold that the claim in the present case was to make a 'new' application under the Housing Act 1985 and not S's claim to defend the possession proceedings.
  2. The provisions of the Housing Act should, in general, be given a purposive and practical construction and deciding such issues under housing legislation should not turn on the answers to technical questions of property law.
  3. The right to apply under the Act was a personal right which could only be exercised by the tenant was not transferrable: S's right to apply ended on his death. Without express statutory provision (of which there was none), an application could not be made except by a party to the possession proceedings.
  4. Protocol 1 art. 1 of the European Convention on Human Rights 1950 did not create any such rights as argued by U and since there was not right granted to U after S's death, the Protocol was not engaged.

The appeal by U was dismissed by the court.


This decision has potentially made the area of succession in relation to secure tenancies more straightforward. The right to apply to 'revive' a tenancy can only be made by the secure tenant and was non-transferrable upon death.

For landlords and tenants, consideration of this verdict in future secure tenancy matters may be advisable.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.


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