Austin v Mayor and Burgesses of The London Borough of Southwark: SC 23 Jun 2010

The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live in the house paying rent and sums from the arrears until he died in 2005. The appellant said that he had lived in the house since 2003, having gone to care for his brother during his illness. The claimant now said that the Court should reverse the HL decision in Thompson.
Held: The resident’s appeal was allowed. The question amounted to asking whether the periodic tenancy created under section 82(3) came to an end on the date fixed by the court order (per Thompson) or the date when physical possession was taken on execution of the warrant. The second reading avoided the anomalies associated with the tolerated tresspasser status, but the reading of the section as expressed in Thompson is now so embedded in the law that the consequences of reversing it were incalculable, and the problem had been addressed in the 2008 Act. The judgment in Knightley should instead be overruled.
In this case the deceased’s tenancy had continued, and was capable of being exercised by his personal representative.

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Brown, Lord Kerr
[2010] WLR (D) 156, [2010] UKSC 28, [2010] 26 EG 90, [2010] PTSR 1311, [2010] 35 EG 94, 2010] 3 WLR 144
WLRD, Bailii Summary, SC Summary, SC, Bailii
Housing Act 1985 79(1) 82(2), Housing and Regeneration Act 2008, Housing and Regeneration Act 2008 (Commencement No 5) Order 2009 (SI 2009/1261)
England and Wales
At First InstanceAustin v Southwark London Borough Council (499) QBD 29-Jan-2008
. .
At First InstanceAustin v Southwark London Borough Council (355) QBD 29-Jan-2008
. .
Appeal fromAustin v London Borough of Southwark CA 16-Feb-2009
The court considered the right to succeed to a secure tenancy which has terminated during the lifetime of the tenant as a result of a possession order, but with the former tenant remaining in possession as ‘a tolerated trespasser’, and having a . .
CitedBurrows v Brent London Borough Council HL 31-Oct-1996
The authority had obtained a possession order from its secure tenant but then agreed to accept payments toward the arrears. The tenant applied for and was granted a declaration that she had on that agreement acquired a new tenancy. The authority . .
ConfirmedThompson v Elmbridge Borough Council CA 1987
The wife was the secure tenant of the premises, against whom the local authority landlord obtained a possession order on grounds of arrears of rent, not to be enforced on payment of a weekly sum off the arrears in addition to what the order . .
CitedGreenwich London Borough Council v Regan CA 31-Jan-1996
The authority had taken possession proceedings against the secure tenant for non-payment of rent, and obtained an order, suspended on condition as to payments. He again fell into arrears, and the authority made a further agreement. They now sought . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedHesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde HL 1978
No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the . .
CitedKnowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: . .
MentionedHorton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
CitedHarlow District Council v Hall CA 28-Feb-2006
The defendant had been subject to a possession order in respect of his secure tenancy. He was later adjudged bankrupt. He asserted that the bankruptcy specifically prevented other action to enforce the debt, and the suspended possession order was . .
MentionedRegina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
OverruledBrent London Borough Council v Knightley and Another CA 26-Feb-1997
The daughter of a deceased tenant claimed succession to her mother’s interest in a tenancy which was subject to a possession order.
Held: There can be no succession to a tolerated trespasser under a former secure tenancy. . .
CitedBristol City Council v Hassan and Glastonbury CA 23-May-2006
The council had obtained possession orders for two properties from secure tenants, but the orders were suspended for so long as rent arrears were being discharged. The judges had understood that a date must appear on the possession order.

Updated: 11 November 2021; Ref: scu.417704