KNOWSLEY HOUSING TRUST v WHITE
[2008] All ER (D) 115

Assured tenants do not become tolerated trespassers when they breach the terms of a possession order

In December 2008 the House of Lords heard an appeal concerning the effect of suspended possession orders on the status and rights of assured tenants under the Housing Act 1988.

The decision will make a difference to policies and procedures on rent arrears and also affects eligibility for the right to buy and the preserved right to buy and general tenancy enforcement including anti-social behaviour.

Although the courts don't make suspended possession orders anymore but instead issue postponed possession orders the problem of tolerated trespassers is still with us. Anyone dealing with rent arrears or tenancy enforcement or right buy applications must establish the status of the tenant before making a decision about what action to take. The basic question is always does this person have a tenancy?

In 1993 the Council granted Ms White a secure tenancy. In 2002 the Council transferred its housing stock to the Trust and she became an assured tenant with a retained right to buy. Ms White did not pay the rent and the Trust issued possession proceedings that resulted in a suspended possession order on terms which Ms White breached. In the meantime, she claimed the right to buy which the Trust denied on the basis that she was a tolerated trespasser and did not have a tenancy.

Ms White challenged the Trust's decision and she lost her case before both the County Court and the Court of Appeal which decided that assured tenancies end in the same way as secure tenancies on the date for possession set out in the possession order. It was thought that this ended the argument about the use of different wording in the 1985 and 1988 Housing Acts making a difference as to when a tenancy terminates.

However, the House of Lords took a different view and held that an assured tenancy ends only when the possession order is executed. Therefore, the effect of a possession order under the 1988 Act is different from a possession order under the 1985 Act. The intention of the House of Lords was to avoid assured tenants becoming tolerated trespassers with all the uncertainties that carry with it.

In two related appeals heard at the same time, Honeygan-Green v Islington LBC and Porter v Shepherds Bush Housing Association [2008] All ER (D) 115, the House of Lords confirmed the law, namely that a secure tenancy under the 1985 Act terminates on the date stated in the possession order.

Before Knowsley Housing Trust v White assured tenants who breached a suspended possession order lost their tenancy and their security of tenure and lost most of their rights. After the decision in Knowsley if they are still in occupation of the property they will not be tolerated trespassers and still have the full status of a tenant.

Postponed possession orders were introduced because assured tenants became tolerated trespassers when they breached the terms of the possession order. Following Knowsley that is no longer the case. So if you would prefer a suspended possession order use this case to persuade the District Judge.

If you would like any further information about this or housing related issues please contact PAUL FORSTER.