Housing law

Tolerated trespassers

It is well-established that a tolerated trespasser - a former secure tenant who remains in occupation despite the termination of his tenancy by court order - cannot rely on the repairing covenants in his tenancy agreement, or on section 4 of the Defective Premises Act (DPA) 1972 (see Burrows v Brent LBC [1996] 1 WLR 1448, HL).

Before bringing a claim for disrepair, a tolerated trespasser should apply to the court under section 85 of the Housing Act 1985 to postpone the date of possession, thereby reviving the tenancy.

If the tenancy is so revived, it is revived retrospectively (see Lambeth LBC v Rogers (1999) 32 HLR 361, CA).

Where the disrepair is severe, it may be in both parties' interests for the tenant to be transferred to alternative accommodation.

The landlord avoids an order for specific performance and the tenant should obtain better accommodation while remaining entitled to sue for damages suffered in his former home.

However, what if the occupier is a tolerated trespasser when the transfer takes place? After the transfer, can the old tenancy be revived solely to enable a disrepair claim?

The Court of Appeal addressed this issue in Dunn v Bradford MDC and Marston v Leeds CC [2002] EWCA Civ 1137.

It held that the power to postpone 'at any time before the execution of the order' contained in section 85(2) had to be read subject to the qualification 'and for so long as execution is required to give effect to the order for possession'.

Voluntary vacation of the premises - before or after the issue of a warrant of possession - brings to an end the court's power to postpone the date of possession in the order.

In Marston, the Court of Appeal also rejected an argument based on estoppel by convention.

It held that the authority was not estopped from asserting that the tenancy had come to an end prior to the transfer, notwithstanding that the occupier had been re-housed in the mistaken belief of both parties that they remained tenants at the date of transfer.

On the facts, the court considered that neither party would have acted differently had it addressed its minds to the true legal status of the occupiers.

Accordingly, it was not unconscionable for the authority to defend the disrepair claim on the basis that the tenancy had come to an end.

Two further points arose in Dunn.

First, the claimant argued that the authority was in breach of the obligation under section 13 of the Supply of Goods and Services Act 1982 to exercise 'reasonable care and skill' in supplying the service of providing them with housing accommodation.

However, the court held that the provision of housing accommodation by a local authority - whether to a tenant or to a tolerated trespasser - is not carrying out of 'a service' for the purposes of the 1982 Act.

Secondly, with regard to the period during which the tenancy existed, the claimant tried to rely on section 4 of the DPA 1972 with regard to a defective damp-proof course.

The tenancy agreement had expressly reserved to the authority a right of entry to carry out improvements as well as repairs.

The occupier sought to argue from this that the landlord was obliged to carry out works of improvement to the damp-proof course even if it was not in disrepair.

The court held that section 4 does not impose any obligation to carry out improvements.

By Andrew Dymond, barrister, Arden Chambers, London