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Marie Gaiger comments on the recent decision in Austin v Southwark London Borough Council.

The Supreme Court has ruled that the right of a "tolerated trespasser" to apply to the court for a postponement of the date for possession, enabling them to remedy the default and revive the secure tenancy, under s 85(2) of the Housing Act 1985, survives the death of the tenant and could, consequently, be exercised by his personal representative. A tolerated trespasser is a person who has lost their status as tenant as a result of continuing to occupy his rented home following a breach of the terms of a suspended possession order.

Mr Austin, the appellant in this case, was the brother of a tenant of a local housing authority whose tenancy had been a secure tenancy under Housing Act 1985. The appellant's brother had fallen into arrears with his rent and the housing authority initiated possession proceedings in June 1986. A suspended possession order was granted in February 1987; the conditions of the order were that the rent arrears had to be paid in full by March 1987. The tenant failed to comply with the conditions of the order and it therefore became enforceable. However, the tenant remained in the property as a tolerated trespasser, continuing to pay rent and sums towards the arrears until his death in February 2005.

Mr Austin moved in with his brother in 2003 and lived with him as his full-time carer. In September 2006 the council served a notice to quit on Mr Austin and in January 2007 started possession proceedings. In March 2007 he applied under CPR 19.8 to represent the estate of his brother in the possession proceedings brought by the Council in 1986. The effect of this appointment would be to allow him to postpone the date for possession set out in the possession order. If successful, the secure tenancy would be revived and pursuant to section 87 of the Housing Act 1985 would vest in Mr Austin if he could prove he had lived in the property for 12 months prior to his brother's death.

Mr Austin's application was refused by all the lower courts. His appeal to the Supreme Court was on 5 grounds. The Supreme Court's decision dealt with two of the grounds of appeal, the other grounds were held to be irrelevant in the light of their findings on the second ground.

The first ground required the Supreme Court to rule as to whether a secure tenancy ends on the breach of a conditional suspended possession order or when the order for possession is actually executed. The appellant asked the court to depart from the authority of Burrows v Brent London Borough Council 1996 and find that the secure tenancy

ends when the possession order is enforced and not when it becomes enforceable. This ground was dismissed.

The Supreme Court refused to depart from the decision of Burrows because of the impact that it would have on social landlords. The case had been applied in many cases and legislation had been drafted on the basis that Burrows was good law. The Supreme Court held that to depart from it now would undermine the will of Parliament.

The second ground to be decided was whether, contrary to the decision in London Borough of Brent v Knightley(Deceased), a secure tenant's statutory right to apply to postpone the date for possession was an interest in land, capable of being inherited and passes to his estate on his death.

The Supreme Court allowed the appeal on the second ground and overruled the decision in Knightley. They held that if Parliament had intended that the power to suspend a possession order could only be used by the tenant while they were alive, then it would have been expressly provided for in the wording of the relevant section of the Housing Act 1985, as similar exclusions are found elsewhere in the Act in relation to the expiry of other rights.

This decision will enable Mr Austin as the personal representative of the estate of his brother to apply to have the power to postpone the possession order and make good the arrears of rent, thus reviving the secure tenancy.

Although this case clarifies an area of law that was left un-addressed by Housing and Regeneration Act 2008 ("HRGA"), as from 20 May 2009, when the relevant sections of that Act came into force in their entirety, no new tolerated trespassers can be created or former tenancies revived. This case will therefore have limited implications as it will only apply a narrow set of circumstances, namely: where a secure tenant died before 20 May 2009 with an effective possession order (granted prior to the HRGA), where the applicant wishing to postpone the possession order continues to live in the property, having lived with the deceased for a period of 12 months preceding their death and the applicant is capable of succeeding to the possession order.

Marie is a Solicitor in the Litigation & Dispute Resolution Team in Exeter. She specialises in property related disputes. The solicitors are described as "exceptional" in the Legal 500 2010 independent directory. If you would like advice on the issues raised in the article above or on any other property dispute, Marie can be contacted on 01392 210700.