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The end of the tolerated trespasser?

For a long time housing law has been bedeviled by a concept known as ‘the tolerated trespasser’ which occurs when a tenant who has had a suspended possession order made against him, breaches the terms of the order but is allowed to stay in occupation.

A suspended possession order is where a possession order is made but the landlord is not allowed to send in the bailiffs to recover physical possession of the property so long as the tenant complies with conditions set out in the court order – normally relating to the payment of the rent arrears by instalments. Often the terms of the order are breached by something which was not the tenants fault, such a failure to pay rent which is solely due to non payment of housing benefit. He then becomes a ‘tolerated trespasser’.

This ‘tolerated trespasser’ situation has caused problems, as many tenants (generally tenants of registered social landlords such as council tenants) have continued to live in the properties months and years after the order was made, but because their tenancy officially been ended when the order was breached they are no longer proper tenants. This means for example that they cannot enforce repairing covenants against their landlords.

However in a recent case, the Court of Appeal has suggested a new form of court order to solve this problem. In this new form of order, it will state that a possession order has been made but will provide for the date for possession to be fixed by the court at a later stage, upon application by the claimant if the defendant breaches the terms of the order. In the meantime the defendant keeps his tenancy, and the ‘tolerated trespasser’ problems will not arise.

Its nice to see the Court of Appeal sorting things out. Let us hope that the new order is taken up as they suggest, and that it works.

The case (which is actually two cases heard together) is reported on BAILII and is called Bristol City Council v. Hassan/Bristol City Council v. Glastonbury.

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Important note. If you are reading an old post, remember that the law may have changed since it was written.

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3 Responses to The end of the tolerated trespasser?

  1. It is worth noting that the new form of order requires the landlord to make application to Court to determine the date of possession. This could be on paper, but may involve a hearing – in any case notice is required. I’ve had a couple of recent County Court cases where this has been confirmed.

  2. If you are interested in this topic, you may also want to read the comments on the Nearly Legal blog on the tolerated trespasser question – and find out why I changed the title of this post …

  3. […] The end of the tolerated trespasser? […]



About the post author:

Tessa Shepperson

Tessa is a lawyer and specialises in creating products and services which help landlords and letting agents learn and understand landlord & tenant law. For example, she runs the Landlord Law website (now in its 14th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google

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Tessa is an English lawyer specialising in residential landlord and tenant law.

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