Possession order — Warrant for possession — Suspension — Tolerated trespasser — Breaches of possession order — Whether landlord waiving breaches — Whether new tenancy created — Appeals dismissed
The appellant tenants appealed against possession orders made in favour of the respondent landlords. In each case, the court had suspended possession orders or warrants for possession on terms that the appellants paid a current rent charge together with an amount towards the arrears. Those terms were breached. The tenants had remained in possession with the knowledge of the landlord, and, in so doing, became “tolerated trespassers”, as defined in Newham London Borough Council v Hawkins [2005] EWCA Civ 451; [2005] 29 EG 100.
The appellants contended, inter alia, that the respondents had waived the breaches of the possession orders so that the original tenancies revived, or, alternatively, that new tenancies arose by virtue of the issue of new tenancy conditions.
Held: The appeals were dismissed.
It was not open to a landlord to waive breaches of an order so as to resuscitate an original tenancy; it was necessary to make an application to the court. The power to discharge or rescind an order for possession could be exercised only in the light of circumstances prevailing at the time: Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594; [2002] HLR 22 applied.
A new tenancy would not generally arise from the mere fact that a tolerated trespasser remained in possession with the landlord’s consent. Special circumstances were required to take such a case out of the everyday situation in which a landlord would allow a former tenant to remain in occupation provided it made satisfactory payments and that its occupation was otherwise acceptable. The facts had to lead to the conclusion that a new tenancy had arisen: Burrows v Brent London Borough Council [1997] 1 EGLR 32; [1997] 11 EG 150 applied.
In the present cases, the court had been entitled to find that no new tenancies had come into effect.
Robert Latham (instructed by Ole Hanson & Partners) appeared for the appellant in the first appeal; Jan Luba QC and Adam Fullwood (instructed by Stephensons, of Manchester) appeared for the appellants in the second appeal; Toby Watkins (instructed by the legal department of Lambeth Borough Council) appeared for the respondents in the first appeal; Edward Bartley Jones QC and Andrew Vinson (instructed by the legal department of Helena Housing Ltd) appeared for the respondent in the second appeal.
Eileen O’Grady, barrister
