Austin v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Longmore,Lord Justice Pill |
| Judgment Date | 16 February 2009 |
| Neutral Citation | [2009] EWCA Civ 66 |
| Docket Number | Case No: B5/2008/0369 |
| Date | 16 February 2009 |
| Court | Court of Appeal (Civil Division) |
[2009] EWCA Civ 66
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
FLAUX J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Arden and
Lord Justice Longmore
Case No: B5/2008/0369
Jan Luba QC & Desmond Rutledge(instructed by Messrs Anthony Gold) for the Appellant
Richard Drabble QC & Shaw Kelly (instructed by Southwark Legal Services) for the Respondent
Hearing date: 13 November 2008
Lady Justice Arden:
This is an appeal from the order of Flaux J dated 29 January 2008 dismissing an appeal from HHJ Welchman sitting in the Lambeth County Court. It raises an important point about 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 right to apply for the revival of his tenancy under s 85 of the Housing Act 1985 (“the 1985 Act”) immediately prior to his death. The appellant, Mr Barry Austin, is the person who would have succeeded to such a tenancy if it had existed at the date of the death of his brother, Mr Alan Austin. He applied to the court pursuant to CPR 19.8 (set out below) to be joined to the possession proceedings that led to the loss of his brother's tenancy to represent the estate of his brother in order that as such representative he can exercise the right to apply to the court for revival of the tenancy. The respondent is the former landlord (“Southwark”). In my judgment, for the reasons given below, this appeal must be dismissed.
A former tenant, in the position of Mr Alan Austin, who remains in possession with the consent of the landlord after termination of a secure tenancy, is known to the law as a “tolerated trespasser”. There are a large number of tolerated trespassers. The estimate made by the government in a consultation paper in August 2007 was that some 250,000 new tolerated trespassers had acquired that status since 2001 alone: see Tolerated Trespassers —A Consultation (August 2007) Department for Communities and Local Government, HC 04533/14. The courts have developed a jurisprudence about tolerated trespassers which is based on provisions of the 1985 Act.
Parliament has now passed the Housing and Regeneration Act 2008 (“the 2008 Act”). The 2008 Act, which has not yet been brought into force, contains provisions designed to ensure that tenants do not acquire the status of tolerated trespasser in future. Under the present law a secure tenancy terminates on the date on which the tenant is to give up possession in pursuance of the possession order, and not when (if ever) the order is executed. Under the 2008 Act, the secure tenancy will not terminate until the order is enforced and possession is actually taken. In addition, the 2008 Act contains provisions designed to ensure that certain tolerated trespassers at the date of the commencement of the 2008 Act are put back into the position of secure tenants. They will be given replacement secure tenancies with the additional terms contained in the possession order which previously resulted in their being tolerated trespassers. Thus the clear legislative policy has been to protect and enhance the legal position of tolerated trespassers at the date of the commencement of the 2008 Act and to restore them to their rights as secure tenants. However, the issues raised by this appeal could potentially apply to any tolerated trespasser whose death occurs before the commencement date of the 2008 Act or who is not entitled to a replacement tenancy under that Act.
No findings of fact have been made at this stage in the present case but the background can be taken from the judgment of HHJ Welchman:
“The late Mr Alan Austin was granted a secure tenancy by the London Borough of Southwark in July 1983 and an order for possession was made on 4 February 1987. It was an order that was not to be enforced so long as payments were made. It is common ground that by reason of the order and the payment history, he has become what has been known as a tolerated trespasser. I do not need to go any further into that issue for the purposes of this application. The late Mr Alan Austin was permitted to continue residing in the property until his death on 8 February 2005. It is Mr Barry Austin's case, and I accept it for the purposes of this application, that since October 2003 he has been living with and in fact nursed his brother through the last year or so of his life and if this was a subsisting tenancy, then it would have been open to Mr Barry Austin to have become a tenant by succession from a member of the family under section 87 of the Housing Act. But what in fact he wishes to do through the estate of his late brother is to make an application under section 85 of the Housing Act so as to postpone the date of possession and so that the tenancy can be restored. That is the underlying purpose of this application.”
Mr Alan Austin became a tolerated trespasser when he failed to comply with the conditions set out in the possession order made on 4 February 1987. Mr Jan Luba QC, for Mr Barry Austin, estimates that Mr Alan Austin was in possession as a tolerated trespasser for over fifteen years. Mr Alan Austin died intestate. There has as yet been no administration of his estate.
HHJ Welchman held that CPR 19.8 had no application, and that an application under s 85 could not be made after Mr Alan Austin's death. From that decision, Mr Barry Austin appealed to the High Court. The appeal was heard by Flaux J, who dismissed the appeal. Before the judge, Mr Barry Austin relied on the First Protocol to the European Convention on Human Rights (“the Convention”). The judge rejected this submission. He held that, in Brent LBC v Knightley (1997) HLR 857, this court decided that the right to apply under s 85 was not a right of property. The judge held that there was no deprivation of any property and article 1 of the First Protocol did not confer any rights of property. The judge also held that in any event he would not exercise the discretion under CPR 19.8 as sought by Mr Barry Austin.
Secure tenancies under Part IV of the Housing Act 1985 and “tolerated trespassers”
Part IV of the 1985 Act contains the statutory scheme applying to secure tenancies. In outline, s 79(1) of the Housing Act 1985 defines a secure tenancy as follows:
“(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.”
The landlord and tenant conditions are defined in ss 80 and 81. So far as relevant, the landlord condition is that the landlord is a local authority. The tenant condition makes it clear that the tenant must be an individual and must occupy the property the subject of the tenancy as his only or principal home:
“81. The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.”
On the face of it, s 81 suggests that a secure tenancy automatically ceases to be secure when the tenant dies. However, ss 87 to 89 confer certain succession rights on secure tenants. I need only set out ss 87 and 89:
“87. A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either—
(a) he is the tenant's spouse [or civil partner], or
(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
unless, in either case, the tenant was himself a successor, as defined in section 88.
89. (1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.
(2) Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules -
(a) the tenant's spouse is to be preferred to another member of the tenant's family;
(b) of two or more other members of the tenant's family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.
(3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy -
(a) when it is vested or otherwise disposed of in the course of the administration of the tenant's estate, unless the vesting or other disposal is in pursuance of an order made under -
(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings),
(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc.),
(iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or
(iv) Part 2 of Schedule 5, or paragraph 9( 2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)
(b) when it is known...
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