When Does Possession End?

A recent case is of interest to public sector landlords as it dealt with the situation when a tenancy comes to an end but the tenant does not give up the property. When a tenant under a secure or assured periodic tenancy fails to give up possession of the property and the landlord does not act to evict the tenant after obtaining an order for possession, the tenant becomes a 'tolerated trespasser'.

Mr Jones was a tenant of the London Borough of Merton, which was granted a possession order against him in early 2005. The order was not enforced and Mr Jones remained in occupation of his flat, thereby becoming a tolerated trespasser. He left the flat later that year, but he retained the keys and left some of his belongings there. He requested a housing transfer during that time.

In October 2005, the Council advised Mr Jones that he could not be transferred to new accommodation until his arrears of rent - which had built up to over £1,200 - were settled. His father paid the arrears and in November 2005 one of his friends removed his remaining property from the flat. No further rent was paid.

The Council advised Mr Jones that he should not terminate his tenancy until he was re-housed. This took place in June 2006. The Council also advised him that he was liable for the rent on his old flat until he was re-housed, because he had not brought his previous tenancy to an end, and until it had received notice of termination of his previous tenancy, which occurred in September 2006.

In December 2006, the County Court ordered him to pay the Council a sum equivalent to the rent he should have paid from October 2005 until September 2006. This amounted to over £3,000.

Mr Jones disputed the claim. In his view, he had vacated the flat in October 2005 and he also disputed that notice to terminate the tenancy had to be given. He argued that as a tolerated trespasser, his liability to pay rent ceased when he gave up possession of the flat. The Council argued that a tolerated trespasser does have to give notice to their former landlord that they have given up the property they occupied, thus allowing the landlord to re-let the property.

The Court of Appeal found that a tolerated trespasser does not have to give notice and has a liability to pay rent only until the property is given up. In the Court's view, this was when Mr Jones removed his possessions from the flat (November 2005), not when he gave formal notice of his intention not to reside there.

Because of the numerous issues that arise when a tenant becomes a tolerated trespasser, the Government intends to abolish the status altogether, which should lead to greater clarity in landlord/tenant law in similar circumstances.

Partner Note
Jones v London Borough of Merton [2008] EWCA Civ 660. See http://www.bailii.org/ew/cases/EWCA/Civ/2008/660.html.

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