Local authority – Housing – Rent arrears – Respondent council obtaining possession order against appellant tenant – Appellant becoming tolerated trespasser – Appellant not giving notice to end trespass – Whether appellant remaining liable to pay mesne profits – Appeal allowed
The appellant was the tenant of a one-bedroom flat owned by the respondent council under a secure tenancy within Part IV of the Housing Act 1985. In February 2005, the appellant became a tolerated trespasser following the making of an order for possession against him when he fell into rent arrears in the sum of £388.11.
In June 2005, the appellant was shot in the leg by a burglar and decided that he could not continue to live in the flat. Following a meeting with the respondents in October 2005, the latter recommended a “management transfer” on payment of the arrears, which had risen to £1,231.76. The housing needs officer also informed the appellant that he remained liable for the rent even though he was not living in the flat, but advised him not to end the tenancy until his rehousing had been finalised.
Arrears of rent began to accrue again and the respondents pressed for payment in November 2005. The appellant then removed his belongings from the flat and put them into storage. In June 2006, the appellant was granted a tenancy of another flat. In the interim, the respondents had issued proceedings seeking possession of the flat on the ground that the appellant was a secure tenant in arrears of rent due under the tenancy. They sought an order for possession together with a money judgment for rent arrears until the date of the order and mesne profits. The appellant argued that the respondents had accepted his surrender of the tenancy at the October 2005 meeting, after which he was no longer in possession of the flat.
Following a hearing in December 2006, the county court concluded that, since the surrender of a tenancy required an unequivocal acceptance by the landlord that the tenancy should end and since the respondents had not accepted that the appellant’s liability to pay mesne profits should cease, the appellant remained liable for the arrears. Accordingly, he was ordered to pay to the respondents mesne profits of £3,200.77, which was referable to the flat from October 2005 to September 2006. The appellant appealed.
Held: The appeal was allowed.
A former tenant who wrongfully remained in possession after the end of an ordinary tenancy ceased to be liable for mesne profits when he gave up possession, irrespective of notice. Nothing indicated that the law treated the liability of the tolerated trespasser to pay mesne profits differently from that of other former tenants. A tolerated trespasser who was still in possession of premises might apply to the court for relief under section 85 of the 1985 Act. It was significant that section 85(3), which, in the context of the stay or suspension of execution of an order for possession against a tolerated trespasser, defined “mesne profits” as “payments in respect of occupation after the termination of the tenancy”, did not contain any element of notification.
In those circumstances, the court could not graft onto the law a requirement that the liability of a tolerated trespasser for mesne profits should continue until he or she not only gave up possession but also gave notification: Southport Tramways Co v Gandy [1897] 2 QB 66 and Dunn v Bradford Metropolitan District Council [2002] EWCA Civ 1137; [2002] 3 EGLR 104 considered.
In order to establish that he had ceased to have possession of his flat, the appellant had to show that he had relinquished factual possession of the premises and that he no longer intended to possess. It was not sufficient to state that it was his intention to give up possession if his actions indicated otherwise: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 applied.
In the present case, the evidence did not justify a conclusion that, by 3 October 2005, the appellant had relinquished his intention to possess the flat. On its proper analysis, he had intended to remain in possession until November 2005, when he removed his possessions. The judge’s order would therefore be set aside and the appellant would be ordered to pay mesne profits of £343.36 from October to November 2005: John Laing Construction Ltd v Amber Pass Ltd [2004] 2 EGLR 128 considered.
Robert Latham (instructed by Hammersmith and Fulham Community Law Centre) appeared for the appellant; Lloyd Sefton-Smith (instructed by the legal department of Merton London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
