Tolerated Trespassers: What to do about it?
Linda Pearce
Barrister
6 Kings Bench Walk
1.
Verify the status of your client at the earliest opportunity:
1.1
However the issue arises, you must first check your facts before you are in a
position to decide and/or advise your client what to do about it.
 obtain a copy of the housing file under the Data Protection Act or by
way of an immediate application for disclosure
 If you have the case number ask the court for a copy;
 Always ask the housing officer/client to obtain a print out of the rent
account – ie to ascertain when and if there was breach and/or to
demonstrate a history of consistent payments as the foundation for
any application.
1.2
There is no automatic revival of a tenancy once a possession order has been made
and breached even if the conditions of suspension have been subsequently
complied with. Unless the grant of a new tenancy can be established an application
of some sort needs to be made, even if the arrears are discharged in full. A further
order under s.85(2) or (4) is required.
1.3
If you need to make an application, this will be by way of CPR Part 25 application in
the original proceedings.
2.
Check the terms of the possession order to ascertain if it is enforceable
and/or binding upon the tenant:
2.1
The old prescribed county court Form N28 (pre 1993) provided “judgment for
possession should cease to be enforceable when arrears of rent and costs are
satisfied”. It was held in Blaenau Gwent BC v Snell March 1990, Legal Action 13,
Blackwood CC, that once the tenant had cleared the arrears and costs, the order
had been complied with and no further warrant could be issued.
2.2
The same wording was before the Court of Appeal in Swindon BC v Aston
[2002] EWCA Civ 1850, [2002] HLR 3i. In that case a possession order was made
in 1991 which in terms provided that it should “cease to be enforceable when the
(arrears of rent) are satisfied”. The tenant cleared the arrears in 1996. The Court of
Appeal held not only that the possession order was unenforceable against him but
since it was, the tenant could not apply to rescind or vary that unenforceable order
under s.85(2) or (4) (see further below under regrant).
2.3
In 1993 the wording of N28 was substituted by “When you have paid the total
amount mentioned, the plaintiff will not be able to take any steps to evict you as a
result of the order”. Since it has the same effect, ie it is unenforceable, it would
appear to have the same result.
2.4
In 2001 with the introduction of CPR Part 55 the wording was again revised. The
current wording is: “This order is not to be enforced so long as the defendant pays
the claimant the rent arrears and the amount for use and occupation [and costs,
totalling] £ by the payments set out below in addition to the current rent. The
use of the words “for so long as” would imply that once there has been a failure to
comply with the payments ordered the order is enforceable and the tenant entitled
to make application under s.85(2) or (4).
2.5
Where the possession order itself specifies that it is not enforceable and/or
automatically revoked and/or discharged on a certain date, application for leave to
enforce the order prior to that date does not save or continue order. There has to
be an order varying it prior to it’s expiry: see Vale of Glamorgan DC v Grech [1997]
CLY 2719, Cardiff CCii
3.
If the order is enforceable, consider whether there are grounds to set it aside?
3.1
If the judgment is a nullity ie because the claim form was never served the
defendant is entitled to have any order set aside as of right: White v Weston [1968]
2 QB 647. Failure to consider reasonableness could render a possession order a
nullity: Minchburn Estates Ltd v Fernandez (1987) 19 HLR 29 (Consent order
agreed and made in absence of Dt) see also Hounslow LBC v McBride (1999) 31
HLR 143 and Gil v Baygreen Propeties Ltd [2002] EWCA Civ 1340, [2002] HLR .
3.2
If the possession order was made in the absence of the tenant, the court has power
to set it aside under CPR 39.3. An application must be supported by evidence:
CPR 39.3(3). The court may only grant the application if:
(a) the applicant acted promptly when he found out that the court had made an
order against him; “with alacrity, not that the applicant has been guilty of no
needless delay whatsoever but rather that he has acted with all reasonable celerity
in the circumstances” per Simon Brown LJ in Regency Rolls Ltd v Carnall 16.10.00,
noted in civil procedure news, Aril 23 2001. 6 weeks = prompt where considerable
no. documents Watson v Bluemoor Properties Ltd [2002] EWCA Civ 1875.
(b) had a good reason for not attending the trial; what may constitute a good reason
is not fixed, a finding that genuine and honest is not sufficient, court must be
satisfied reason is sufficient for court to exercise discretion in favour of defaulting
party. Must be some explanation Shocked v Goldschimdt [1998] 1 All ER 372 (no
good explanation); must be evidence in support if “ill health” is suggested:
Southwark LBC v Joseph (1999) Legal Action, March 2000 p.29; “indisposed” not
enough Regency Rolls Ltd v Carnall . Absence of notification of trial date is good
reason but still need to show reasonable prospects of success: Hackney LBC v
Driscoll [2003] EWCA Civ 1037.
(c) has a reasonable prospect of success at trial; even if tenant had attended, if an
SPO is likely to have been made, there are no reasonable prospects of successfully
defending claim nor sufficient reason to set aside outright order: Gateshead BC v
Turner July 1998 Legal Action 11; see also Lambeth LBC v Henry (2000) 32 HLR
874, (where an outright order was in fact varied to an SPO under s.85(2)); the
prospect of s.85(2) postponement and possible disrepair counterclaim did not give
tenant a reasonable prospect of success; Southwark LBC v Joseph (1999) Legal
Action 29.
This is a more stringent test than under CCR Ord. 37 (which has been revoked) and
the application can only be granted if all 3 elements have been satisfied; Barclays
Bank Ltd v Ellis (2000) the Times October 24th.
3.3
The court also has power under CPR 3.1(7) to vary or revoke any order it makes.
This is not confined to procedural orders and no real guidance is found within the
rule or elsewhere as to the possible limits of the jurisdiction. According to Patten J in
Lloyd’s Investment (Scandinavia) Limited v Ager-Hanssen [2003] EWHC 1740, Ch,
the applicant must either show some material change of circumstances or that the
judge who made the earlier order was misled in some way, whether innocently or
otherwise as to the correct factual position ie if there was some material nondisclosure on an application. If all that is sought is a reconsideration on the basis of
the same material then that can only be done in the context of an appeal. Nor can a
party re-argue by relying on submissions and evidence which were available to him
at the time of the earlier hearing but not employed for whatever reason.
3.4
Under CCR Ord 37, r8(3) if a possession order is set aside, execution ceased to
have effect: Governors of the Peabody Donation Fund v Hay (1987) 19 HLR 145,
CAiii
4.
Consider whether there has there been a re-grant?
4.1
Since Street v Mountford [1985] AC 809, the acceptance of rent for defined periods
in return for exclusive possession of a dwelling house is a tenancy no matter what
the parties call it. This is not however so for tolerated trespassers who on the
authorities appear to have to show more than mere payment of the
weekly/increased rent in return for exclusive occupation before they can establish a
new tenancy has arisen.
4.2
Initially the judiciary treated former secure tenants as “sui generis” by reason of the
availability of s.85(2) ; see Millett LJ in Greenwich LBC v Regan (1996) 28 HLR 469.
He considered little guidance could be obtained from the cases concerning other
sorts of tenants. The courts reluctance to infer the creation of a new secure
tenancy during the “limbo” period was confirmed by Pumfrey J in Swindon BC v
Aston.
4.3
That general reluctance to infer the grant of a new tenancy from the circumstances
appears however to have spread: Judge J in Stirling v Leadenhall Residential Ltd
[2001] EWCA Civ 1011, [2002] HLR 3, held that the decision of the House of Lords
in Burrows did not depend on s.85(2) and in each and every case it falls to the
court to determine as a matter of fact whether the terms of the agreement itself, the
intentions of the parties and the inferences to be drawn from their conduct give rise
to a new tenancy, a licence or some other arrangement. He relied upon Javad v
Mohammed Aqil [1991] 1 WLR 1007, at 1017 in saying that in each and every case
it is for an individual who asserts a tenancy to establish it. The former assured
tenant Mr Stirling had failed so to do.
4.4
The written “undertaking” signed by Mrs Burrows could hardly have been clearer.
She agreed to pay “rent”, to pay a sum towards her arrears of rent and the council
agreed that she would continue to occupy the dwelling; given the references to
“rent” rather than mesne profits, this could only have been thus referable to the
continuation of the tenancy. It nonetheless did not create a new tenancy but
amounted to no more than a forbearance to sue in the circumstances of the preexisting possession order: Burrows v Brent [1996] 1 WLR 1448. The moral basis
of that decision can be best be derived from the comment of Lord BrowneWilkinson: “It cannot be right to impute the parties an intention to create a legal
relationship such as a secure tenancy or licence unless the legal structures within
which they made their agreement forced that conclusion”; See also VaughanArmatrading v Sarsah (1995) 27 HLR 631, CA.
4.5
Where the documents are unambiguous, the law of contract is such as to force the
conclusion that a tenancy has been granted; see Eastleigh BC v Walsh [1985] AC
809, (letter referring to tenancy + standard conditions signed) = grant of tenancy
notwithstanding that it was never the council’s intention to grant a tenancy.
4.6
But the circumstances can also force that conclusion and a grant can be inferred;
Tower Hamlets v Ayinde (1994) 26 HLR 631, CA grant inferred (a) council knew
absence of tenants; (b) accepted rent knowing from Dt (not the tenant) (c) taken no
action on application for housing.
4.7
No inference of a new tenancy was to be drawn from an award of housing benefit
referable to rent and receipt by landlord council: Westminster cc v Basson (1991) 23
HLR 225, (1990) 62 P&CR 57, [1991] 1 EGLR 277, CA (unlawful occupier);
4.8
An analysis of the correspondence can demonstrate the opposite intention; in
Hammersmith & Fulham LBC v Jastrezebska May 2001 Legal Action 22, (2000) 20
October, Ch D letters from the council made it plain that no tenancy, licence or
consent was to be inferred from tender and acceptance of payments whilst an issue
of succession was unresolved. Similarly where arrears were cleared after receipt of
a letter saying that all further payments would be accepted as mesne profits; the
letter demonstrated the council’s intention not to grant subsequent tenancy and the
subsequent payment of all rent and mesne profits could not affect outcome [ie
status] in law: Ipswich CC v Pegg September 1993, Legal Action 12, Ipswich CC.
4.9
After eviction, the acceptance of rent does not evidence grant of a new tenancy but
part payment of judgment: Greenwich LBC v Regan (1996) 28 HLR 469. But an
agreement to reinstate the tenant despite breach of a suspended order amounted to
the grant of a new tenancy in Sackey v Greenwich LBC March 1996, Legal Action
11, [1996] CLY 3784, Woolwich CC
4.10
Where the continued occupation of the tenant and payment of the weekly and
increased rent can not be referable to a toleration of trespass because the original
possession order is unenforceable, the arrears having been cleared, the existence
of the relationship of landlord and tenant can only be referable to the grant of a new
secure tenancy: Swindon BC (Formerly Thamesdown BC) v Aston [2002] EWCA
CIV 1850, [2003] HLR 42. It has been said that it was the complaints and the new
tenancy agreement which led to the grant but this is not what Mr Justice Pumfrey
held. He considered (at para.25) that the manner in which the council dealt with
the complaints made against the tenant and the provision of the new tenancy
agreement confirmed the view that the relationship between the parties from 1996
when the order became unenforceable was one of landlord and tenant and could
not be referable to the continued toleration of trespass.iv
5.
Has a tenancy by estoppel been created?
5.1
A tenancy may be created by estoppel, ie a principle preventing a man invalidating
his own solemn act arising out of the relationship of landlord and tenant: Woodfall
Vol 1, para 1.034. An example in a Rent act case in which a tenancy was created
by estoppel is : Stratford v Syrett [1958] 1 QB 107. Similarly Hackney LBC v Hunt
March 1992 Legal Action 10, Shoreditch CC Council admitted the defendants were
told that they could move into mother’s home, gave up own council tenancy to do
so, and as a result the council were estopped from denying tenancy. Other
examples where a tenancy has been held enforceable by the doctrine of proprietary
estoppel: Woodfall Vol 1 para 4.05.3 Yaxley v Gotts [1999] 3 WLR 1217 CA, Edwin
Shirley Productions v Workspace Management [2001] 2 EGLR 16. NB The doctrine
of proprietary estoppel requires reliance and detriment on the part of the tenant.
5.2
In Kerr v Liverpool CC December 1996, Legal Action 12, Liverpool CC; HHJ
Holman held that an unlawful sub-tenant was a secure tenant of the council by
estoppel, since she acted on a letter (dated in 1990 to the effect that the council
were her immediate landlords ) to her detriment by embarking on the risk and
expense of preparing for and launching a disrepair claim. In the alternative she had
a secure licence by reference to her undisturbed occupation with the council.
Where a tolerated trespasser embarks on the expense of preparing for and
launching a disrepair claim the same result has not been achieved, HHJ Welchman
decided that this alone did not give rise to an estoppel: Dolonay v Southwark LBC
[1999] 12 CLD 414 (Lambeth CC).
6.
Has there been a waiver of the breach?
6.1
Waiver of the breach and/or the landlords entitlement to apply for a warrant has
been argued in a number of cases. Waiver is the inference of consent to the breach
from acceptance of rent, acquiescence or delay in seeking relief; Woodfall vol 1,
para 11.044.2. The question in each case is whether the conduct or omissions of
the landlord have put the defendant in such altered relation to landlord as makes it
manifestly unjust for the court to grant the landlord the relief sought; Sayers v
Collyer (1884) Ch D 103.
6.2
An agreement to remain in occupation on terms that the tenant discharges arrears
does not amount to revival of the tenancy by waiver: Marshall v Bradford [2001]
HLR 22. Nor does it amount to waiver of the landlords right to enforce an outright
possession order made on mandatory grounds: Stirling v Leadenhall Residential 2
Ltd [2001] EWCA CIv 1011 [2002] HLR 3
6.3
Lambeth was found to have waived the breach by the tenant of compliance with the
conditions in a suspended possession order made in 1992; Lambeth LBC v Hudson
November 1999, Legal Action 28 Lambeth CC. The periods of non-compliance
were due to housing benefit problems and since 1996 the tenant had complied
“hard and fast” and paid all but £30 of the payments due since the order. DJ Jacey
found that there was clear evidence of waiver of breach by (a) agreement between
parties to vary frequency and amount of payments; (b) an arrangement made in
1995 for payment by direct deductions from IS; and (c) signing in 1999 of
replacement tenancy conditions agreement provided by the council showing the
tenancy as having commenced in 1985. Alternatively DJ Jacey exercised his power
to postpone the date for possession under s.85(2) since the tenant had done what
she should have done.
7.
When can application be made to rescind/discharge the possession order
under s.85(4)?
7.1
The extended discretion under s.85 only applies where the order is made
on reasonableness grounds (grounds 1-8, 12-16). The court has power to
rescind/discharge the order if the conditions are complied with. The conditions in
s.85(4) is a reference to the conditions as varied from
time to time under
s.85(3) upon which the order for possession was suspended; Marshall v Bradford
Metropolitan Council [2001 EWCA CIv 594, [2002] JLR 22 per Chadwick LJ with
whom Schieman LJ and Sir Christopher Staughton agreed.
7.2
However it was suggested by Pumphrey J in Swindon BC v Aston [2002] HLR 3
that the court cannot exercise that power unless there has been compliance with the
conditions in full. He upheld the recorder’s dismissal of Mr Aston’s application
pursuant to s.85(4) to rescind the possession order on the basis that Mr Aston was
precluded from seeking to revive his tenancy since although he had paid off all the
arrears he had not complied with the terms of the 1991 order (£2 pw in addition to
current rent) (para20). CF Lambeth LBC v Rogers [2000] 32 HLR 361 Possession
order discharged by HHJ Gibson notwithstanding (i) consistent breach of the
suspended possession order and a subsequent agreement dated 31.5.94 and (ii) a
debit balance on the rent account at the date of determination of her disrepair claim
and her applications under s.85(2) and (4). The court of appeal comprising Lord
Justice Simon Brown, Lord Justice Otton and Lord Justice Mummery upheld that
decision.
8
When can an application be made to postpone the date of possession under
s.85(2)(b):
8.1
The discretion under s.85(2)(b) applies only where the possession order has been
made on reasonableness grounds (grounds 1-8, 12-16). On the making of the order
or at any time before execution, the court has power under s.85(2)(b) or s.9(2) to
postpone the date for possession ie to substitute an alternative date (usually sought
to be the date the application is heard) for the date in the original order; see
Greenwich LBC V Regan (1996) 28 HLR 469, CA. The effect of the court acceding
to that application is to reinstate the tenancy and treat it as if it were not determined
by the earlier order and breach of conditions (unless otherwise directed s.85(3)(b)).
8.2
An application to reinstate retrospectively is unlikely to succeed in the absence of
consistent discharge of obligations: Routh v Leeds CC June 1998, Legal Action 11,
CA per Sir John Vinelott “Not only was [the judge] entitled to exercise his discretion in the way
he did but, in my judgment, he was bound to take the view that it would be unjust to the council to
reinstate the tenancy retrospectively with the result that they would have obligations to a tenant
imposed upon them, although the tenant was one who had never consistently discharged her
obligations to pay rent to them.”
8.3
Recent consistent discharge might be sufficient per Lord Justice Simon Brown in
Lambeth LBC v Rogers [2000] 32 HLR 361 (see para 5.6 above) in which he said
“the council really cannot complain of being held liable retrospectively under their repair covenant:
after all they continued to debit Miss Rogers for her full “rent” during the whole period of her trespass
and it is difficult to see why this should have been payable unless only she was inhabiting the
premises in a proper state of repair…. But without the benefit of the agreement and indeed, several
months’ satisfactory compliance with it, she could hardly have expected to succeed upon such an
application.”
8.4
In exercising it’s discretion whether to strike out (a disrepair claim by a tolerated
trespasser) or to entertain an application or the possibility of an application for
reinstatement, the court should bear in mind (i) the tenants previous payment
record; (ii) whether all parties were before the court; (iii) whether the tenant was
seeking merely the execution of works of repair or also damages for past repair;
Marshall v Bradford MDC [2001] EWCA Civ 594 [2002] HLR 22, [2001] EG 140, CA:
v
8.4
Reported cases in which applications have succeeded include: Carty v Southwark
LBC August 2000 Legal Action 25, [2000] 20 June, application succeeded to
postpone date of possession to enable claimant to pursue his claim in contract and
Clements v Lambeth LBC July 2000 Legal Action 29, Wandsworth CC, order sought
at trial and allowed by HHJ Collins since to do otherwise would offend ordinary
notions of fairness and decency if no legal redress for appalling conditions over 5
years.
8.5
Once the tenant has vacated, the court has no power to make an order under
s.85(2)(b): Dunn & Anr v Bradford MDC, Marston & Anr v Leeds CC [2002] EWCA
Civ 1137 [2003] HLR 15.
8.6
The power to vary the date of possession is also available to the landlord to bring
forward date of possession: Manchester CC v Finn [2002] EWCA CIv 1023, [2002]
HLR 539, QBD
9.
When can application be made to suspend/stay execution of the order under
s.85(2)(a) ?
9.1
The discretion under s.85(2)(b) applies only where the possession order has been
made on reasonableness grounds (grounds 1-8, 12-16). On the making of the order
or at any time before execution, the court has the power to stay or suspend
execution under s.85(2)(a). Upon such application “the district judge can take all relevant
circumstances into account as they appear at the time of the application. Those will include any
medical evidence which is before the court, any evidence as to the defendants behaviour since the
original order and the effect of an immediate order for possession which is not suspended upont he
likelihood of the applicant being rehoused under the Housing Act 1996 .” per Clarke LJ in
Plymouth v Hoskin [2002] EWCA Civ 684.
9.2
The court exercising its discretion under s.85 can take account of matters other than
those relied upon as grounds for making the original possession order; Sheffield CC
v Hopkins [2001] EWCA Civ 1023, [2002] HLR 12 in which the CA identified the
folllowing points to be relevant when considering any application:(1) the discretion should be used so as to further the policy of the Housing Act 1985, Part IV,
reinforced by ECHR article 8. The policy is only to evict after a serious breach of an obligation where
it is reasonable to do so and where the tenant is proved to have breached any condition of
suspension; (2) the overriding objective of the CPR, especially the need for applications to be dealt
with in a summary and proportionate way, means that wider issues may not be able to be dealt with
on an application to suspend or vary. They may need to be dealt with in some other way;
(3) the tenant should have clear evidence of what is alleged, especially where the allegations were
not contained in the original claim;
(4) the fact that the landlord had or had not included the allegations as apart of the original
proceedings is relevant;
(5) the discretion to consider other allegations should generally be exercised more readily in respect
of matters occurring after commencement of proceedings;
(6) the court should also consider the practicalities of dealing with matters on the execution of a
warrant;
(7) the fact that the tenant is at the mercy of the court and the responsibilities of a public landlord to
its other tenants.
In the same way as for the making of any order the court should bear in mind the
importance of the issue to the tenant, at risk of losing his home, and the
responsibilities of social landlords to other tenants.
9.3
The power to stay or suspend execution only exists before execution of the order
unless the warrant has been obtained by fraud or there has been an abuse of the
process or oppression in it’s execution: Hammersmith & Fulham LBC v Hill (1995)
27 HLR 368; see also Southwark LBC v Sarfo (2000) 32 HLR 602, categories not
closed, no-one can envisage all sets of circumstances but general principle is that “it
is the insistence by a public authority on its strict rights in circumstances which
make that insistence manifestly unfair” per Roch LJ. A more restrictive approach
was taken by the Court of Appeal in Jephson Homes Housing Association Ltd v
Moisejevs & Another [2001] 2 All ER 901, (2001) 33 HLR 594, CA – oppression in
the execution of a warrant requires an unfair use of the court’s procedures, or action
by a person which is open to criticism as unfair.
10.
There is no inherent jurisdiction in the county court to suspend, adjourn or
postpone the warrant for possession outside of s.85.
10.1
Apart from the specific jurisdiction under s.85 (and on forfeiture) the county court’s
powers on an application for possession will normally be subject to the restriction
contained in the Housing Act 1980, s.89. It cannot postpone possession beyond 14
days or in the case of exceptional hardship such longer period as it considers
reasonable not exceeding 6 weeks. Those provisions do not restrict the High Court;
see Bain & Co v Church Commissioners for England [1989] 1 WLR 24, Ch D.
10.2
The issue of a warrant for possession is no more than an administrative act to give
effect to a judicial decision. The tenants rights under the ECHR are considered at
trial and no separate determination of those rights arises on issue of the warrant:
Southwark LBC v St Brice [2002] 1 WLR 1537.
10.3
The procedure for obtaining a warrant of possession remains that set out in CCR
Ord 26.
i
; 1987 secure tenancy, 1991 SPO expressly provided that it should “cease to be enforceable when (arrears ofrent) are
satisfied”. Arrears fluctuated till paid off in 1996. Further frequent arrears but paid off on 5 further occasions. LL served NtQ
& without prejudice NSP. Sought possession, trial of preliminary issue, held tenancy determined on breach of conditions in
1992, further breach 1994 admited.. Application to rescind under s.85(4). Application dismissed. Tt appealed dismissal. CA
held that once arrears paid off in 1996, tenants occupation could not be referable to continued toleration of his trespass but
had to be referable to a newly created secure tenancy. Application under s.85(4) to rescind the order precluded by tenant’s
failure to comply. Application to postpone not possible since order had ceased to be enforceable.
ii
, possession order on nuisance grounds suspended on terms the tenant comply with undertakings
given about her conduct until 20.12.95 after which time the possession order be automatically
revoked. It was further ordered that the possession order was not to be enforced without leave.
Application by council for leave to enforce in October 1995, tenant’s application to strike out in March
1996 successful.
iii
iv
v
Query whether since revocation of Ord 37 this is still the case?
Swindon was decided on 19.12.02 and Stirling on the 29.6.01
secure tenancy 1984, SPO 1989 £490.60 @ £1.70pw. April 99 arrears of £5.82, disrepair proceedings instituted May99
application to strike out. June 99 before hearing of application, arrears discharged. DJ held tenancy terminated in
1990, 1st time missed payment. CJ upheld, CA dismissed appeal. Council had not waived right to treat as
terminated. Agreement permitting former tt to remain on terms does not have effect of reviving tenancy. No
automatic revival once arrears discharged. Compliance with terms did not have effect of discharging or rescinding
possession order. Further order was required. In exercising discretion to strike out or to entertain application or
possibility of an application for reinstatement, court should bear in mind. Having regard to factors, no basis for
interfering with discretion.