Austin v Mayor & Burgesses of Southwark London Borough Council

Background

The Appellant’s brother, Alan, was the former secure tenant of the property. Alan’s tenancy ended when he failed to comply with the conditions set out in the possession order dated February 1987. However, Alan remained in possession of the property as a tolerated trespasser until his death on 8 February 2005.

The tenancy would have vested automatically to Barry under section 87 Housing Act 1985 had the tenancy existed at the date of his brother’s death. Barry applied to be joined to the possession proceedings so that he could, through his late brother, make an application to postpone the date for possession and revive the tenancy in the process.

The decision

An application under section 85 of the Housing Act 1985 could not be made after the former secure tenant dies, as the right to apply for a postponement of the Order could not be inherited. The former tenant’s right to apply under section 85 Housing Act 1985 therefore terminates on the former tenant’s death.

Comment

The Housing and Regeneration Act 2008 is not yet in force and under present law, a secure tenancy still terminates on the date on which the tenant is to give up possession. Therefore, Barry could not succeed to the tenancy as there was no secure tenancy in existence at the time of his brother’s death. But when the 2008 Act comes into force in April 2009, the secure tenancy will not terminate until the order is enforced and possession is actually taken.

Further, the 2008 Act contains provisions designed to ensure that certain tolerated trespassers are put back into the position of secure tenants. However, the issues in this case could potentially apply to any tolerated trespasser whose death occurs before the 2008 Act comes into force.

Andrew Logan, Solicitor
andrew.logan@weightmans.com