Local housing authority — Secure tenant — Tolerated trespasser — Husband secure tenant of property — Wife (H) succeeding to tenancy following husband’s death — Appellant children living in property at H’s death — Respondent authority seeking possession — Appellants claiming succession to tenancy upon death of H — Whether H holding tenancy in own right at date of death — Appeal dismissed
The appellants were the sons and grandson of H, who, under section 87 of the Housing Act 1985 (the 1985 Act), had become the secure tenant of a property as successor to her husband following his death in 1987. H fell into arrears with the rent and her landlords, the respondent authority, obtained an order for possession within 28 days. However, this was suspended upon payment of the current rent together with a weekly sum to pay off the arrears. H initially breached the suspension order, but subsequently paid off a large amount of the arrears and thereafter continued to make regular payments. She remained in the property with the respondents’ approval and thus became a “tolerated trespasser”.
Following H’s death, the respondents brought an action for possession of the property against the appellants, who had been living with H in the property. The appellants claimed to be entitled to the tenancy as successors to H under section 87 of the 1985 Act.
The judge found in favour of the respondents. He concluded that, upon her death, H had occupied the property either as a tolerated trespasser or, if the respondents waived her breaches of the suspended possession order, under her original secure tenancy. Thus, the appellants could not succeed to her tenancy. The appellants appealed.
The question was whether the judge ought to have found that H had acquired a new tenancy from the landlord since, by virtue of section 87 of the 1985 Act, rights of succession would not arise unless H had been a tenant in her own right and not merely a successor upon the death of the previous tenant.
Held: The appeal was dismissed.
No basis existed upon which the judge could have found that a new tenancy had been created, and the appellants were therefore not entitled to remain in possession.
As a general rule, a new tenancy would not arise in circumstances where a tolerated trespasser remained in possession with the landlord’s consent. Until a possession order had been executed, the court could vary its order and change the date for possession, thereby reviving a secure tenancy that had been terminated. The extension of a mere indulgence did not create a new secure tenancy. More was required to take the case out of the everyday situation in which landlords allowed former tenants to remain in occupation subject to conditions: Burrows v Brent London Borough Council [1997] 1 EGLR 32; [1997] 11 EG 150 considered.
It was clear that, by accepting H’s occupation, the respondents had agreed not to enforce the possession order so long as her occupation was satisfactory. Thus, they would have been precluded from objecting had she applied to the court to vary the suspended possession order. No offer of new terms or any demand for a rent increase had been made that might have indicated an intention to create a new tenancy: Swindon Borough Council v Aston [2002] EWCA Civ 1850; [2003] 02 EG 104 (CS) distinguished.
Sylvester Carrott (instructed by Hereward & Forster) appeared for the appellants; Desiree Artesi (instructed by the solicitor to Newham London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
