A tolerated trespasser can be described as a tenant whose tenancy has been brought to an end by an outright possession order or a suspended/postponed (fixed date) possession order, but who remains in possession of his or her home with the landlord’s permission and paying for occupation. This situation can persist for many years.
A tolerated trespasser loses all rights that are granted with a secure/assured tenancy (statutory and contractual). They have no right to buy or acquire, no right to repair or have ad hoc repairs undertaken, no right of succession or assignment and no right to transfer from their existing home or move into another property by undertaking a mutual exchange.
RIGHT TO BUY/ACQUIRE
Tolerated trespassers can apply to the court to revive their former tenancy. In law, if the tenancy is revived it will continue unbroken, and all of the time spent as a tolerated trespasser is disregarded. Tenants are entitled to a full right to buy/right to acquire discount.
The association could consider granting a new tenancy. This would mean that any time spent as a tolerated trespasser would not count towards a right to buy/acquire discount.
Associations should continue to undertake repairs on all properties occupied by a tolerated trespasser for the following reasons:
- Properties occupied by a tolerated trespasser may be excluded from responsive repair and pre-planned maintenance programmes. However if the tolerated trespasser is successful in varying the original order, having it revoked or reviving the tenancy, he or she would be able to seek damages for the non repair/disrepair that occurred during the “limbo” period;
- A tolerated trespasser may have sufficient interest in the property in order to bring about nuisance action against the association pursuant to the Environmental Protection Act 1990;
- Further deterioration in the condition of the property as result of not undertaking repair works may result in extensive repairs at a later stage.
Potential successors who discover that the tenancy they wish to succeed to no longer exists cannot apply to postpone, revive or vary the order, as the order for possession is not an interest in land capable of being inherited. Occupants could apply to the association for a new tenancy, or could consider asking the courts to discharge the order if they are intent on pursuing succession as a way of inheriting the former tenancy. Courts will not however allow succession to take place where no tenancy existed.
Assignment cannot happen if the person who wishes to give away (assign) their tenancy is not a tenant. Of course associations will need to take account of the individual merits of each case. If the potential successor would have qualified as an assignee, had the issue of tolerated trespasser not been an issue, then a new tenancy may be granted subject to all other relevant criteria having been satisfied.
TRANSFERS TO ALTERNATIVE ACCOMMODATION
A tolerated trespasser will not have a tenancy to transfer from. The common policy of housing associations is that transfers from existing accommodation are not allowed if there are rent arrears, and tolerated trespassers often have rent arrears. However a person can be a tolerated trespasser if they had arrears which are cleared in full but which were subject to a court order which had a date fixed for possession or that had been breached. Therefore consideration again should be given to the merits of each case.
REVIVAL OF A TENANCY
Tolerated trespassers can use this method as a tool to force a decision from the courts and reinstate their former tenancy. This postpones the date of the possession order, revokes, varies or discharges the order, and allows the tenancy to continue. The association could do this on tenant’s behalf, but as there is a cost implication the onus must be put onto the former tenant.
GRANTING A NEW TENANCY
This action can be considered when the tolerated trespasser has cleared the arrears and court costs in full and the association is satisfied that the former tenant can conduct their contractual obligations satisfactorily.
An eviction can be applied for at any time after the tenant becomes a tolerated trespasser, i.e. as soon as they breach the order. It is not necessary to serve a Notice to Quit or a Notice Seeking Possession, as there is no tenancy to serve it upon. An application to the court to ask the bailiff to execute a warrant (evict) for possession is all that is required when the former tenant fails to adhere to the court order.
TOLERATED TRESPASSERS’ OBLIGATIONS
Once the tenant’s status is changed to that of a tolerated trespasser, the contractual tenancy agreement is bought to an end. As a result the covenants in the tenancy agreement are un-enforceable by either party. If the tolerated trespasser is engaged in serious anti-social behaviour the association can apply for a warrant due to breach of the suspended/postponed possession order on the grounds of rent arrears (where there has been a default), and if the tolerated trespasser applies to vary the possession order the association cross-apply to defend the application and/or include a condition that the occupier does refrain from such behaviour. It is a matter for the court’s discretion in deciding whether to allow that issue to be raised.
It is essential that associations balance their obligations as providers of accommodation for those most in need against exposing themselves to claims pursuant to statutory provisions, common law nuisances and negligence. Associations will need to formulate policies so as to ensure that there is a consistent and fair approach when dealing with tolerated trespassers, in order to avoid unjust decisions.