The Rights of a Tolerated Trespasser

Pemberton v Southwark LBC (CA TLR 26 April)

Because the claimant’s rent was in arrears, a possession order had been made against her, suspended subject to conditions which she had failed to meet. She had stayed on in the flat making regular payments to the local authority. Her secure tenancy had come to an end when she first breached the terms on which the possession order had been suspended. From then on she had been a trespasser whom the landlord had agreed not to evict, a ‘tolerated trespasser’, a status first recognised by the House of Lords in Burrows v Brent LBC ([1996] 1 WLR 1448). There were reasons of policy why a former secure tenant who had been allowed to remain in occupation of premises upon terms did not acquire a new tenancy or a licence. Were a tenancy or a licence to be created it would be made secure by Part IV of the Housing Act 1985, obliging the local authority to seek a fresh possession order. If evicted, the former tenant as a homeless person might be entitled to be rehoused. A tolerated trespasser could only be evicted for breach of the conditions on which she was being allowed to remain in the premises, although she was in occupation with the assent of the landlord and was under an obligation to make payments in respect of occupation. The local authority’s defence to an action started against them by the claimant alleging that the flat was infested with cockroaches which had entered through the heating ducts from the common parts owned and controlled by the local authority was that she had no cause of action against them because she was not their tenant and did not have a sufficient interest in the flat to support an action in nuisance.