Council owning premises – Tenant becoming tolerated trespasser after failing to comply with terms of suspended possession order – Whether tolerated trespasser having sufficient interest in premises to bring action in nuisance against council – Judge finding appellant having no cause of action against council – Appeal allowed
In April 1990 the appellant entered into a tenancy agreement with the respondent council in respect of a flat at 40 Chepstow Way, London SE15, which gave rise to a secure tenancy under Part IV of the Housing Act 1985. The appellant fell into arrears of rent and the council sought possession. In July 1992 the county court made a possession order against the appellant that was not to be enforced for so long as the appellant punctually paid instalments of rent arrears and the current rent. The appellant failed to make the payments required by that order, and she consequently became a “tolerated trespasser” in July 1992. As such, she was liable to be evicted from the flat at any time, on the council obtaining a warrant for possession from the county court and instructing the bailiffs to execute it.
In October 1992, pursuant to an application by the appellant, the county court ordered that the warrant for possession be suspended for “so long as [the appellant] pays the current rent and £2.15 per week off arrears”. By November 1992 the appellant was in breach of that order, having failed to make the payments required.
In October 1997 the appellant commenced proceedings in nuisance against the council, alleging that the flat was infested with cockroaches from common parts of the building in the ownership of the council. The council admitted the infestation, but claimed to have taken steps to eradicate the insects. They also claimed that, in any event, the appellant had no cause of action against them because she was not a tenant at the relevant time and did not have a sufficient interest in the flat to support an action in nuisance. The council further alleged that they did not owe a duty of care to the appellant. The appellant conceded that, since 1992, she had not been a tenant and that she could not pursue a statutory or contractual claim.
A hearing was ordered of a preliminary issue as to whether the appellant had a cause of action against the council in respect of the infestation. The judge held that she did not. The appellant appealed.
Held: The appeal was allowed.
1. The policy considerations that had led to the evolution of the special status of tolerated trespasser were not good reasons for depriving the tolerated trespasser of all rights and remedies in trespass and nuisance. The local authority were under no obligation to repair the premises. However, there was no reason why they should not be obliged to conduct themselves, in relation to the remainder of the premises, so as not to create a nuisance; that was to say, so as not to interfere in a tortious way with the tolerated trespasser’s occupation and use of the premises: Burrows v Brent London Borough Council [1997] 1 EGLR 32 considered.
2. The appellant, as a tolerated trespasser, still retained the exclusive occupation and possession of her flat. The council could not turn her out. It was true that the council could, at any time, seek to enforce their order for possession and, if they had one, execute a warrant for possession by instructing the bailiffs to carry it out. Both those courses would have been subject to the appellant being able to persuade the court to take one of the steps open to it under section 85 of the Housing Act 1985. In those circumstances, the appellant, as a tolerated trespasser, did have sufficient interest in the premises to sustain an action in nuisance: Hunter v Canary Wharf Ltd [1997] AC 655; [1997] PLSCS 108 considered.
Paul Morgan QC and Tracey Bloom (instructed by Glazer Delmar) appeared for the appellant; Michael Barnes QC and Tiffany Scott (instructed by the solicitor to Southwark London Borough Council) appeared for the respondents.
Thomas Elliott, barrister
