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.