Housing Law – Assured tenancies and tolerated trespassers

Recently much has been written about when assured tenancies end and whether the tolerated trespasser regime applies to them. The vast majority of commentators blithely state that the omission from the Housing Act 1988 (“HA 1988”) of an equivalent to Section 82(2) Housing Act 1985 (“HA 1985”) (providing that secure tenancies end on the date stated in the order) means that assured tenancies end on the date of eviction. There is no authority on the matter but at least one case (Knowsley HT v White) is heading towards the Court of Appeal. This short article gives the briefest of overviews of the subject and argues that the concept continues to exist under HA 1988.

The argument against tolerated trespassers tends to go as follows (severely abridged):

• Parliament deliberately omitted an equivalent of Section 82(2) HA 1985 from HA 1988 to avoid the many difficult consequences of Thompson v Elmbridge BC by reverting to tenancies ending upon eviction as under the Rent Act 1977. Sherrin v Brand is cited.
• As HA 1988 expressly addresses the end date of a statutory periodic tenancy at Section 7(7) (i.e. an assured tenancy that started with a fixed term) Parliament clearly intended that Section 7(7) consequences should not apply to periodic assured tenants (the former being popular with private landlords and the latter with social landlords).

Although neat in theory, there are compelling arguments against (also severely abridged):

• The language used in Sections 5(1), 6A(3), 9(2)(b), 9(3), 9(5) and 9(5A) HA 1988 is consistent with assured periodic tenancies ending on the date stated in a possession order. For example, Section 9(3) provides for the payment of mesne profits “in respect of occupation after the termination of the tenancy…”.
• Parliament would have expressly stated that assured periodic tenancies ended upon eviction as this is a departure from the common law and HA 1985 (express words were used in HA 1985 when departing the Rent Act 1977 position). Especially as HA 1988 follows the scheme of HA 1985.
• It would be perverse for statutory periodic tenancies and assured periodic tenancies to end on different days given that they are both assured tenancies.
• There is no evidence (from Hansard or elsewhere) to suggest Parliament had in mind Thompson v Elmbridge BC or the distinction between private and social landlords.
• Section 7(7) HA 1988 avoids the need for a second NSP to terminate any new statutory periodic tenancy arising under Section 5(2) where proceedings are brought during the fixed term but the term expires before an order is made. Parliament’s continued use of the Order end date here confirms that it had not been dismissed as inappropriate.
• The Rent Act 1977 is an entirely different code of legislation and its “statutory tenant” is not a tenant at all but rather a “status of irremovability” with no interest in land.
• The private/social landlord distinction is unsatisfactory because both can grant fixed term and periodic assured tenancies.

Given the above and the history of tolerated trespassers, it is difficult to imagine the appellate courts ruling that tolerated trespassers under HA 1988 were simply a mistake. However, there are some deeply unsatisfactory aspects of the tolerated trespasser regime (principally revolving around the suspension of the parties’ contractual rights) and the challenge is there for a bold and clever tribunal to untie this Gordian knot. More likely, though, the courts will leave tolerated trespassers alone and either ask Parliament to look at the matter or take the view that the revised wording of possession orders deals with the problem adequately (albeit from 2006 onwards).