Court of Appeal victory for tolerated trespassers
Thousands of secure tenants who have had possession orders made against them by the courts remain in occupation of their dwellings. Social landlords are often slow to evict them, and can continue to obtain ‘rent’ from them as tolerated trespassers for as long as they are in occupation. But what happens when they leave? Merton Borough Council argued, and convinced the Croydon County Court, that tolerated trespassers should remain liable to pay their ‘rent’ until such time as they formally notify the landlord that they have left – whether or not they have actually departed.
The issue came before the Court of Appeal (Arden, Wall and Wilson LJJ) on 16th June 2008 in the case of Jones v London Borough of Merton [2008] EWCA Civ 660. Mr Jones was represented by the Hammersmith and Fulham Community Law Centre.
Until 11th February 2005 Mr Jones was the secure tenant of a Merton Borough Council flat. From that date on he became a tolerated trespasser, because although Croydon County Court had made a possession order against him for rent arrears he stayed on in the flat and the Council did not move to evict him. However, in June 2005 masked men broke into his flat and shot Mr Jones in the leg. Unsurprisingly, he never returned to the flat. Merton conceded that by 3rd October 2005 it knew that Mr Jones was no longer in occupation. In November 2005 a friend took the last of Mr Jones’ belongings – a bed, television, computer and stereo – from the flat.
In May 2006 Merton again issued possession proceedings against Mr Jones, and the case was eventually heard in December 2006 in Croydon County Court. Merton claimed that even though Mr Jones was no longer in possession he had originally stayed on as a tolerated trespasser after 11th February 2005 and so was liable for ‘rent’, or mesne profits, for his occupation up until 25th September 2006 – because he had not formally notified Merton until then that he was no longer in occupation and Merton had not accepted any surrender of the flat from him. The County Court judge found in favour of the Council’s arguments and ordered Mr Jones to pay £3,200 to Merton.
At the Law Centre in Hammersmith, case worker Beverley Brown and then solicitor Jenny Hunt handled the case for Mr Jones. They instructed Robert Latham of Doughty Street Chambers to appear for Mr Jones in the Court of Appeal. The Court allowed Mr Jones’ appeal on the grounds that the County Court judge was wrong to consider that the same principles by which a tenant effected the surrender of his tenancy also governed the circumstances in which a tolerated trespasser secured discharge of his obligation to pay mesne profits to his former landlord. The Court rejected Merton’s argument that a tolerated trespasser should be made to pay mesne profits until he had not only given up possession but had also given notification of that to the Council. The Appeal Court ordered Mr Jones to pay Merton £343 for the period up until 15th November 2005 when his final belongings were removed.
Lord Justice Wilson noted that The Housing Law Practitioners Association estimates that there are as many as 750,000 tolerated trespassers in public sector housing in England and Wales, and added ‘indeed a recent survey suggests that in inner London between 10% and 20% of occupants of local authority housing are tolerated trespassers rather than tenants.’
The Housing and Regeneration Act 2008, when it comes in to force, will effectively abolish the ‘tolerated trespasser’. In future a secure tenancy (or an assured tenancy) will continue until a warrant for possession has been executed. In the meantime, thanks to Mr Jones and the Hammersmith and Fulham Community Law Centre hundreds of thousands of tolerated trespassers will be in a much less vulnerable position.
