Tolerated Trespassers and Assured Tenancies judgment
02/05/2007
Judgment has today been handed down in the case of Knowsley Housing Trust v Julie White [2007] All ER (D) 38 (May) which was heard in the Court of Appeal on 14th and 15th March 2007.
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15/2/08 UPDATE Knowsley HT v Julie White has been listed by the Judicial Office in the House of Lords for 8th and 9th October 2008.
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The Court of Appeal dismissed the appeal by Julie White and held that an assured tenancy came to an end on the date specified in the possession order. However, the matter is far from over. Longmore LJ stated that if the matter were free from authority he would not have found that form of order used (Form N28) had the effect of terminating the tenancy. The Secretary of State supported the application for leave to appeal to the House of Lords and representations from Shelter have also been received supporting such an appeal so that the whole area of law concerning “tolerated trespassers” can be reviewed.
In terms of practicalities and in the interim the form of PPO used in Bristol CC v Hassan should be used to avoid bringing the assured tenancy to an end when that is not the court’s, nor the parties, intention.
> reported in The Times 15/5/07
Background to the case:
Julie White was a transferring tenant of KHT and sought to exercise her preserved right to buy. After initially accepting her right the Trust informed her that she had no entitlement as she was a tolerated trespasser following a breach of the terms of a suspended possession order obtained by KHT post transfer. She made an application for a declaration as to her status. It was argued on her behalf that the tenancy did not come to an end either upon breach of the old SPO or on the date specified in the possession order as she was an assured tenant and there was no equivalent of Housing Act 1985 section 82(2) in the Housing Act 1988. HH Judge Mackay dismissed the application on the basis that section 9(3) of the 1988 Act referred to the power to order the payment of mesne profits meaning the tenancy was capable of terminating before execution of the order. (15 September 2006).
Jan Luba QC and Adam Fullwood appeared for Julie White, instructed by Tony Fearnley of Stephensons Solicitors .
