Local Government - June 2009
Schedule 11 of the Housing Regeneration Act
2008 was brought into force on the 20 May 2009.
What does this mean?
This Schedule abolishes the status of
tolerated trespasser. Schedule 11 does not however deal with
the situation deal where a possession order has already been made
and the Landlord has subsequently transferred its interest.
Parliament rectified this situation through the Housing
(Replacement of Terminated Tenancies) (Successor Landlords)
(England) Order 2009 which also came into force on the 20 May
2009.
Existing tolerated
trespassers
1. The tenancy ends the
date the Order for Possession is executed rather than the date that
the Possession is to be given up and so in future no new
tolerated trespassers will be created.
2. All tolerated trespassers, as
long as they meet relevant conditions within the regulations, will
become replacement tenancies. The type of tenancy they obtain
depends upon whether previously they would have been assured,
secure etc. The conditions are:
2.1 The property
remains the only or principle home of the tenant or at least one of
the joint ex tenants has done so throughout the period between
the tenancy coming to the end and the commencement
date.
2.2 The
old landlord or new landlord is entitled to let the property.
2.3 The
parties have not already entered into a new tenancy before the
commencement date.
2.4 The
terms and conditions remain the same save for rent or mesne profits
that have increases during the period of occupation).
2.5 The
court can still make discharge order imposing different types of
condition when the Possession Order is made.
2.6
Any Possession Order which is already discharged to be
treated as still applying to the new replacement tenancy.
3. The tenancy is one continuing tenancy for
the purposes of the qualifying period discount and for any claim
for rent arrears. There could be an issue about whether the
occupier could lose their right to buy unless they apply back to
court to discharge the original Possession Order and reinstate
their tenancy. This is something that apparently the
government are looking to rectify as in compliance with
consultations requirements.
4. The landlord is obliged to
consult tenants before taking certain action. Certainly this
applies to any secured tenancies although this will be subject to
contractual terms. Consultation carried out during the
tolerated trespasser period will not be invalidated as a result of
failure to consult ex tenants or consultations of ex
tenants.
Sian Evans,
Partner
Property Litigation Team
sian.evans@weightmans.com