The Death Knell sounds for the Tolerated Trespasser

THE HOUSING AND REGENERATION BILL 2008

On 31 March 2008 the House of Commons gave consideration to this bill which will affect the status of what are currently known as tolerated trespassers. This will have a direct and significant impact on possession proceedings and security of tenure. It is hoped to implement the part of the bill which relates to tolerated trespassers as early as December 2008.

The Housing Act 1988 (which governs assured tenancies) will be amended as follows:-

Section 5 (security of tenure) will read:

(1) An assured tenancy cannot be brought to an end by the landlord except by -

(a) obtaining -
(i) an order of the Court for the possession of the dwelling house under Section 7 or 21, and
(ii) the execution of the Order,
(b) obtaining an Order of the Court under section 6A (Demotion Order) or
(c) In the case of a fixed term tenancy which contains power for the landlord to determine the tenancy in certain circumstances, by the exercise of that power, and, accordingly the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy.

So, in the case of Orders for Possession, a tenant will not lose his secure status until the Order is executed by warrant.

NB: Assured status is lost upon the granting of a Demotion Order (a tenancy becomes assured shorthold).

Another change proposed in the bill is that a Court may discharge or rescind a Possession Order if it thinks it appropriate having regard to:-

(a) any conditions imposed under the terms of any suspension, stay, adjournment or postponement; and
(b) the conduct of the tenant in connection with those conditions.

This will be favourable for those tenants who have complied with the terms of a suspended order and who wish to have their secure tenancies reinstated.

REPLACEMENT TENANCIES

Help is also on hand for those former tenants who have become "perpetual" tolerated trespassers, in some instances for years. Under the provisions of the Bill it will be possible for tenancies to be "replaced" where the following criteria are met:-

1. an Order for possession was made before the Bill comes into force in law ("the Commencement Date"); and
2. has not been enforced by warrant of possession.

In such circumstances a new tenancy will be treated as arising where the following can be shown:-

(a) the "home condition" is met (see below)
(b) the landlord remains entitled to let the dwelling house and
(c) no other new tenancy has been entered into between the landlord and former tenant

The "home condition" means that the property must be the only or principal home of the former tenant and has been throughout the period from the date of the Possession Order and the Commencement Date.

It is important to note that even where a tenant has been evicted by warrant, if the warrant is subsequently set aside then the above can still apply and a tenancy can be replaced; in this case the replacement tenancy arises on the first day that the former tenant resumes occupation of the property.

A replacement tenancy will be on the same terms as the original tenancy ie assured/assured, assured shorthold/assured shorthold, demoted/demoted etc, and will have the same terms and conditions applicable to it as the original tenancy immediately before it ended by Court Order.

Some modifications to the terms and conditions of the tenancy are allowable, eg. additional payments in respect of rent arrears. In addition, liabilities such as rent arrears will transfer to the replacement tenancy.

However no modifications to the tenancy which would not have been allowed had the tenancy continued whilst the tenancy was a tolerated trespasser, will be allowed in the replacement tenancy.

Importantly, the original Order for possession or any other Court Orders in respect of the original tenancy are to be treated as applying to the replacement tenancies: the replacement tenancy isn't entirely a "clean slate" and the new tenancy and original tenancy are to be treated as the same tenancy. This will have a direct impact on the tenant's eligibility for succession and the right to buy.

 

 

Alison Hale,  April 2008