Revival of Secure Tenancy Revives Rights


The Court of Appeal has issued a ruling which will be unwelcome to social landlords that allow tenants in arrears to become ‘tolerated trespassers’, when a possession order is suspended because the tenant is paying off the arrears of rent which led to the order in the first place. However, the ruling will be welcomed by tenants in these circumstances as it means they will not have to recommence the ‘right to buy’ procedure from scratch, once they have regularised their position and once again become a ‘normal’ tenant.

The case involved a secure tenant who had a possession order made against her for arrears of rent. She had previously had her application to purchase the property granted by her council landlord. Because of the possession order, she became a tolerated trespasser.
Some time later, she cleared her arrears of rent and claimed that this revived her secure tenancy and with it the right to purchase the property. The council claimed that the secure tenancy had not revived and was successful in the lower court. However, on appeal, the Court of Appeal decided differently.
The Court went on to conclude that once the woman’s tenancy had revived, she had the right to sue for breaches of the landlord’s covenants and that right would include breaches of covenants which occurred during the ‘limbo’ period when the tenant was a tolerated trespasser. Furthermore, the right extended to breaches of covenants which were implied as well as those which were expressly agreed. The right to buy was therefore revived as were the tenant’s other rights in such circumstances.
Partner Note
Islington London Borough Council v Honeygan-Green, [2008] EWCA Civ 363.
Because of the legal difficulties presented by tolerated trespassers, the Government is considering changes to landlord and tenant law which will abolish the concept.

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