Loath as I am to disagree with members of the judiciary, there are two important points in the article on tenancies and tolerated trespassers that cannot be left unchallenged (see (2006) Gazette, 31 August, 26).


The first contention - 'if a local authority or registered social landlord does not observe the new rent arrears protocol, possession orders should be refused' is plainly wrong. The new protocol, not surprisingly, contains no such drastic sanctions. It confirms that in cases where the landlord unreasonably fails to comply with the protocol the court may make an order for costs, or in discretionary cases, strike out or dismiss the claim.



The protocol is designed in part to allow tenants to put their house in order and start paying the rent. If the tenant has done so by the time of the hearing then, as before, the court may not feel it appropriate to make an outright order. Costs may well also be disallowed.



However, a tenant who is still not paying rent is going to be hard pressed to avoid a possession order because of non-compliance with the protocol.



The second area of concern relates to the contention that breach of a suspended order made against an assured tenant does not end the tenancy. That view, although held by some academics, is not shared by the majority of the judiciary or practitioners. The point has not been tested by the courts and relies on what many would say is an illogical interpretation of why the draftsman included section 7(7) in the Housing Act 1988.



Until the higher courts decide to the contrary, I suggest that practitioners and landlords continue to regard assured tenancies as having come to an end following a breach of a suspended order.



Daniel Skinner, Batchelors, London