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Tolerated trespassers can pass on rights

29 June 2010

Tolerated trespassers who die can pass the right to apply for secure tenancies to their relatives or spouses, the Supreme Court has decided.

Overturning a unanimous judgment by the Court of Appeal, the Supreme Court declared that the leading case of London Borough of Brent v Knightley (1997) HLR 857 was wrongly decided.

Giving judgment in Austin v London Borough of Southwark [2009] UKSC 28, Lady Hale said the phrase “tolerated trespasser” was an oxymoron. She said the Housing and Regeneration Act 2008, which came into force on 20 May 2009, “abolished the problem” of tolerated trespassers by granting them new tenancies similar to the ones they would otherwise have had.

Lady Hale said the only gap was the one exemplified by this case, where a tolerated trespasser died before an application under section 85(2) of the Housing Act 1985 could be made.

Lord Hope, who gave the leading judgment at the Supreme Court, said that if it had been Parliament’s intention, under section 85(2), that powers should not be exercisable by the courts in favour of others on the tenant’s death, it “would have been easy to say so”.

He held that Knightley was wrongly decided and allowed the appeal by Alan Austin’s brother, Barry. Lords Brown and Kerr concurred and Lady Hale and Lord Walker agreed, giving further reasons.

Charlotte Collins, solicitor at Anthony Gold in London, acted for Barry Austin. She said six firms of solicitors from around the country had contacted her with similar actions, stayed pending the Supreme Court judgment.

Collins said Barry Austin, aged 62, had moved in with his brother to look after him and in the expectation that he would succeed to the tenancy.

“He had almost cleared the arrears but he ran into problems getting his housing benefit paid and with his self-employed income,” Collins said. “He did not know his status and Alan did not know either.”

Collins added that the problem of tolerated trespassers could still come up after a death, where family members did not immediately lay claim to a new secure tenancy.

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