Secure tenancy – Tolerated trespasser – Appellant living with brother under secure tenancy – Respondent local authority obtaining possession order – Brother remaining in property as tolerated trespasser – Appellant applying to represent deceased brother’s estate – Court refusing application since no basis for making order – Whether right to apply for revival of tenancy surviving brother’s death – Appeal dismissed
The appellant lived with his brother in a flat owned by the respondent council. In 1983, the brother was granted a secure tenancy of the property but an order for possession was made in 1987, which was not to be enforced so long as rental payments were made. By reason of the order and the payment history, he became a tolerated trespasser and was permitted to remain at the property until he died intestate in 2005.
After his death, the respondents brought possession proceedings against the appellant. Those proceedings were suspended when the appellant applied to represent his brother’s estate, under r 19.8 of the Civil Procedure Rules 1998, so that he could exercise the right to apply to the court for the revival of the tenancy under section 85 of the Housing Act 1985. The county court dismissed the application on the ground that there was no basis upon which to make the order sought.
The appellant appealed to the High Court, contending that his brother’s right to apply to postpone possession proceedings prior to his death amounted to an interest in property that constituted an existing possession for the purposes of Article 1 of the First Protocol to the European Convention on Human Rights; the High Court dismissed the appeal, holding that: (i) since the possession proceedings in respect of the brother had not survived his death, there was no basis upon which an order under CPR 19.8 could have been made; and (ii) the right to apply under section 85 was not a property right and Article 1 of the First Protocol did not confer any rights of property: see [2007] EWHC 355 (QB). The appellant appealed.
Held: The appeal was dismissed.
Once a secure tenancy had ended, the right of a tolerated trespasser to apply to the court, under section 85 of the 1985 Act, to revive that tenancy could not be exercised by a family member after the death of the tolerated trespasser. Moreover, that right did not survive for the benefit of the tolerated trespasser’s estate. An application under section 85 could not, in the absence of express statutory provision, be made except by a party to the possession proceedings or a person deriving title through a party where that was permitted under the 1985 Act. Parliament had intended that the person who would otherwise be entitled to a secure tenancy, were it to be revived, should not be able to apply to revive it in his or her own name. Therefore, the right to revive the tenancy was not capable of being transmitted either to the appellant directly or to his brother’s estate: Brent Borough Council v Knightley (1997) 29 HLR 857 applied, White v Knowsley Housing Trust [2008] UKHL 70; [2009] 2 WLR 78 considered.
Furthermore, since national law did not confer a right to apply under section 85 following the death of a former tenant, Article 1 of the First Protocol was not engaged.
Jan Luba QC and Desmond Rutledge (instructed by Anthony Gold) appeared for the appellant; Richard Drabble QC and Shaw Kelly (instructed by the legal department of Southwark London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
