Twelve years after giving its endorsement to the notion of the “tolerated trespasser”, the House of Lords in Knowsley Housing Trust v. White [2008] UKHL 70, [2009] 2 W.L.R. 78 has finally reconsidered that controversial status and, in so doing, has consigned it largely to the history books.

Traditionally, the problem concerns secure tenants of public sector housing, whose security of tenure is regulated by the Housing Act 1985. Under that legislation, a secure tenancy may not be terminated by the landlord except via possession proceedings on a number of listed grounds, chief among which is non-payment of rent (Schedule 2, ground 1). Section 85 of the Act empowers the court, when making a possession order on this ground, to stay or suspend the execution of the order or to postpone the date of possession, and may do so upon conditions, usually including terms relating to repayment of arrears. Section 82(2) states that where such an order is made “the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order”. What, then, where the date for possession has passed and the terms of repayment are breached? The answer is that the tenancy is at an end and the former tenant becomes a “tolerated trespasser” unless and until the order is executed; this position was first established by the Court of Appeal in Thompson v. Elmbridge D.C. [1987] 1 W.L.R. 1425 and then affirmed by the House of Lords in Burrows v. Brent L.B.C. [1996] 1 W.L.R. 1448, the case which coined the name. The scope of the problem was increased by the Court of Appeal's decision in Harlow DC v. Hall [2006] EWCA Civ 156, [2006] 1 W.L.R. 2116 that under the form of possession order then commonly in use the tenancy would terminate at the date set for possession even where the terms of the order had not been broken.

The precarious position of the former council tenant in these circumstances has been the subject of widespread criticism; in Knowsley Lord Neuberger condemned it as “a conceptually peculiar, even oxymoronic, status”, at [79]. The Department for Communities and Local Government estimated in 2007 (Tolerated Trespassers – A Consultation, p. 8) that well over 250,000 occupiers were trapped in this status, to which no statutory or contractual rights attach; such occupiers have no security of tenure, no succession rights and no right to enforce the landlord's covenants, for example regarding repair. However, the former secure tenancy remains subject to the possibility of retrospective revival by the court, which may vary the order to move back the date for possession (Greenwich LBC v. Regan (1996) 28 H.L.R. 469); if so revived, the tenancy will “thereafter be treated as having continued throughout without interruption” (ibid, at 475, per Millett L.J.). Pending either execution or revival, the former tenant inhabits – frequently for many years – a “period of limbo” (Burrows v. Brent LBC, supra at 1485, per Lord Browne-Wilkinson), generally recognised as being both legally anomalous and socially undesirable.

The cat was thrown deeper amongst the pigeons when the Court of Appeal decided in Knowsley Housing Trust v. White [2007] EWCA Civ 404, [2007] 1 W.L.R. 2897 that the status of tolerated trespasser could also arise upon the making of a suspended possession order in the case of a private sector assured tenancy under the Housing Act 1988. Mrs White's was one of three conjoined appeals taken to the House of Lords, the other two of which concerned secure tenancies; at last the House had the opportunity to review this tangled corner of law.

Lord Neuberger, with the unanimous support of his brethren, dispatched with alacrity the question of private sector tenancies. The Housing Act 1988 contains no equivalent of section 82(2); section 5(1) of that Act merely provides that the assured tenancy will be brought to an end by the landlord “obtaining an order of the court”. It was therefore possible – as well as expedient – for their Lordships to determine that the assured tenancy terminates only when possession is actually delivered up, leaving no room for the limbo of tolerated trespass. That this ruling created inconsistency between tenancies governed by the two statutory regimes was acknowledged, but nevertheless was felt to be justified.

As regards the public sector, the position was more problematic. The House was cognisant of “its previous approval of a long-standing decision which has been acted on in a plethora of cases” (per Lord Neuberger, at [93]), the overruling of which would therefore cause considerable practical difficulties. The issue was further complicated by the fact that Parliament had taken steps towards remedying the problem of the tolerated trespasser by statutory means. Schedule 11 to the Housing and Regeneration Act 2008 (the main terms of which came into force in May 2009, a few months after the Knowsley appeals were heard) provides, in the case of both secure and assured tenancies, for the tenancy to end not at the date set by the court for possession but only “when the order is executed”. The new legislation is largely prospective in its effect. In the face of Parliament's decision to abolish the status of tolerated trespasser only for the future, Lord Neuberger felt it would be inappropriate for the House in effect to abolish it retrospectively in respect of former secure tenants already occupying under suspended possession orders.

Some measure of alleviation was, however, extended to existing tolerated trespassers. First, overruling the decision in Marshall v. Bradford M.D.C. [2001] EWCA Civ 594, [2002] H.L.R. 428, the House upheld the effectiveness of the “proleptic” possession order. Such an order – issued by the court in Islington LBC v. Honeygan-Green, which was one of the three cases on appeal – stipulates for automatic discharge of the possession order if all arrears and costs are fully paid off. The House of Lords unanimously agreed that section 85 of the Housing Act 1985 is sufficiently broad to empower the court to make an order in these terms, and that the former secure tenancy can therefore revive without the parties needing to go back to court for a variation of the order. Lord Mance dissenting, they further held that this was so whether or not the tenant had kept precisely to the timetable for repayment as specified in the original possession order.

Secondly, even in the absence of such a proleptic provision, their Lordships ruled (overturning Swindon BC v. Aston [2002] EWCA Civ 1850, [2003] H.L.R. 610) that it is open to the former tenant to seek a variation of the order, and thus a revival of the erstwhile tenancy, even where the terms of suspension of the order have not been complied with in full. Finally, the House held that the secure tenant's “right to buy”, though in suspense during the period of tolerated trespass, will revive along with the tenancy if and when the possession order is discharged.

Tolerated trespassers are thus, after a short burst of life, effectively dead as far as privately rented housing is concerned. In the public sector they remain for the present, although Parliament has ensured for the future that no new tenants will fall into this limbo state. And for those already in the situation, the House of Lords has at least smoothed the exit routes, making it easier for the occupier's purgatory to be ended and the secure tenancy restored if all arrears are repaid.