The court was asked ‘If a former secure tenant of a dwelling-house who has become a ‘tolerated trespasser’ in it decides to cease to occupy it, does his liability to pay mesne profits to his former landlord in respect of the dwelling-house cease when he gives up possession of it or does it continue until, additionally, his former landlord is notified that he is no longer in possession of it?’
Held: The tenant’s appeal was allowed in part. He was ordered to pay rent for the period he was now found to have been in possession. ‘A tolerated trespasser is a former secure tenant against whom an order for possession has been made in which the specified date for him to give possession has passed but which has not been executed. ‘ The submission that a court can graft on to the law a requirement that the liability of a tolerated trespasser for mesne profits should continue until his giving not only of possession but also of notification was invalid. ‘for social landlords, the upshot is simple: distinguish between your tenant and your tolerated trespasser; monitor whether you wish (or, by order, are required) to continue to tolerate your tolerated trespasser; in particular, monitor his payment of sums equivalent to rent; and, if such come significantly into arrears, apply for a warrant of possession. For the rights of your tolerated trespasser will end upon execution of the warrant of possession; and, alternatively, if, on application by your tolerated trespasser, the court should stay or suspend execution or postpone the date of possession, you will know the terms upon which the court has tolerated continuation of his trespass. ‘
Judges:
Arden, Wall, Wilson LJJ
Citations:
[2008] EWCA Civ 660, Times 03-Jul-2008
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Burrows 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 . .
Cited – Henderson v Squire 1869
The court considered the case where a tenant sublet the premises and the subtenant unlawfully retained possession following the termination of both tenancies.
Held: The tenant, although himself out of possession, had not given – or restored – . .
Disagreed with – John Laing Construction Ltd v Amber Pass Ltd ChD 7-Apr-2004
The landlord resisted the exercise of a break clause saying that the entire premises had not been vacated. The difference was as to whether mere vacation was enough, or whether the tenant had to do some further positive act. The tenant had left . .
Cited – Swordheath Properties Ltd v Floyd 1978
The rules relatng to the grant of immediate possession to a landowner as against squatters applied in the County Court just as much as in the High Court. The amount of damages payable by a trespasser on land is ordinarily the letting value of the . .
Cited – Southport Tramways Co v Gandy 1897
A former tenant who wrongfully remains in possession after the end of an ordinary tenancy ceases to be liable for mesne profits when he gives up possession, irrespective of notice. . .
Cited – Relvok Properties Ltd v Dixon CA 1972
A lease was assigned to a Mr Krokidis who then departed. The landlords instructed Estate Agents to change the locks. The defendants said that that amounted to a surrender of the lease.
Held: They were wrong: ‘In my judgment Judge Irving . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – Bristol 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.
Cited – Harlow 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 . .
Cited – Dunn v Bradford Metropolitan District Council etc CA 31-Jul-2002
The applicants were local authority secure tenants. Possession orders had been made, but they sought delay in the order after they had already surrendered possession.
Held: Parliament had given wide discretion to the courts to find a balance . .
Lists of cited by and citing cases may be incomplete.
Housing, Landlord and Tenant
Updated: 17 July 2022; Ref: scu.269725