The Supreme Court is today and tomorrow (21 and 22 April) hearing an appeal brought by Mr Barry Austin against  The London Borough of Southwark which concerns the question of whether after the death of a tolerated trespasser, his estate can apply to the court to revive his old tenancy.

The background is briefly as follows. 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, which was not to be enforced so long as payments were made by the tenant. By reason of the order, Mr Alan Austin became what is known as a “tolerated trespasser” and in the event, he was permitted to remain in residence until his death on 8 February 2005. During his lifetime, Alan Austin was entitled to make an application under section 85 of the Housing Act 1985 to revive the secured tenancy. Since 2003, Mr Barry Austin, the tenant’s brother, had also been living in the property. Had it been a subsisting secure tenancy, Mr Barry Austin would have been entitled to become a tenant by succession as a member of the family under section 87 of the Housing Act. In his application Barry Austin, through the estate of his late brother, sought to make an application under section 85 of the Housing Act to postpone the date of possession and to restore the secured tenancy.

Barry Austin’s appeal was dismissed in the County Court and on appeal in the High Court on the ground that a section 85 application could not be made after the death of Mr Alan Austin.

Section 85 confers an extended discretion on the court, at any time before a possession order takes effect, to postpone the date of possession and make other orders as follows:

(1)Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.
(2)On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—
(a)stay or suspend the execution of the order, or
(b)postpone the date of possession,
for such period or periods as the court thinks fit.
(3)On such an adjournment, stay, suspension or postponement the court—
(a)shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
(b)may impose such other conditions as it thinks fit.
(4)If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.
(5)Where proceedings are brought for possession of a dwelling-house which is let under a secure tenancy and—
(a)the tenant’s spouse or former spouse , or civil partner or former civil partner, having home rights under Part IV of the Family Law Act 1996, is then in occupation of the dwelling-house, and
(b)the tenancy is terminated as a result of those proceedings, the spouse or former spouse, or the civil partner or former civil partner, shall, so long as he or she remains in occupation, have the same rights in relation to, or in connection with, any adjournment, stay, suspension or postponement in pursuance of this section as he or she would have if those home rights were not affected by the termination of the tenancy.

Where a possession order is postponed, such that it only comes into force at a future date, the secure tenancy is revived with retrospective effect.

In the Court of Appeal [2009] EWCA Civ 66, Lady Justice Arden gave the leading speech (with which Lord Justices Longmore and Pill agreed). Counsel for Southwark relied on the Court of Appeal decision in Brent London Borough Council v Knightley [1997] EWCA Civ 917 as binding authority on the Court of Appeal that the right to apply under section 85 for postponement of the order for possession was a personal right, only capable of being exercised by Mr Alan Austin and not capable of being inherited. Lady Justice Arden agreed with this submission and rejected the submissions of Counsel for Austin that Knightley was distinguishable because there was no application in that case to represent the estate of the deceased or, in the alternative, it was decided per incuriam.

Counsel for Austin further submitted that section 85 of the Housing Act should be interpreted in a manner consistent with Article 1 of the First Protocol to the European Convention on Human Rights. Lady Justice Arden held that there could only be an interference with rights under Article 1 if the former tenant’s right to apply under section 85 was a possession even after his death. Given that there was no right to make an application under section 85 after the death of the former tenant, Article 1 was not engaged. Further Lady Justice Arden held:

“It would appear to have been Parliament’s intention that a tolerated trespasser should not have the same rights of succession as a tenant who has complied with his obligations under his tenancy agreement.”

Lord Justice Longmore, agreeing with the judgment of the Court, also went on to say that even if the question had not expressly been decided by Knightley and the issue was at large:

“the correct view must be that the right is not exercisable by a deceased’s personal representatives. Parliament plainly intended that the person, who would otherwise be entitled to a secure tenancy if it had been revived, should not be able to apply to revive it in his or her own name. To hold that the deceased’s estate can apply to revive it for the purpose of enabling that person to obtain a secure tenancy would be to circumvent, if not to flout, that intention by means of a legal device.”

The Appeal is being heard by Lords Hope and Walker, Lady Hale and Lords Brown and Kerr.