Pemberton v Southwark London Borough Council

A former secure tenant who remains in exclusive occupation after a possession order has taken effect is a tolerated trespasser. Although the former tenancy and its contractual repairing obligations have ended, the occupier retains a statutory right to remain until enforcement of the possession order.

That exclusive right of occupation gives the tolerated trespasser a sufficient interest in land to sue the local authority landlord, or a third party, in private nuisance or trespass. Exclusive possession need not be adverse possession capable of maturing into title.

The appellant had been a secure tenant of a council flat under Part IV of the Housing Act 1985. Following breaches of the conditions attached to a suspended possession order, she remained in occupation as a tolerated trespasser.

She alleged that cockroaches entered her flat from common parts retained by the council. The council admitted the infestation but contended that she lacked the proprietary interest required to sue in nuisance. HHJ Cox, in the Lambeth County Court, decided the preliminary issue for the council.

On appeal, the council accepted that the negligence claim for personal injury and damage to personal property had to be tried. The central issue was whether a tolerated trespasser could sue the owner of the premises in nuisance.

1. The appeal was allowed unanimously. Roch LJ, with whom Clarke LJ and Sir Christopher Slade agreed, held that the appellant had a sufficient interest in the flat to pursue nuisance and trespass claims against the council.

2. A secure tenancy ends when a possession order takes effect following breach of its conditions. The former tenant then becomes a tolerated trespasser: a sui generis occupier whose former tenancy is in limbo and may be revived under section 85 of the Housing Act 1985. The former tenant has no continuing contractual repairing rights merely because occupation continues.

3. However, the tolerated trespasser is not a mere casual trespasser. Until the possession order is enforced, the occupier has a right, derived from the statutory scheme, to remain in exclusive possession against the council. The council's power ultimately to execute the order does not deprive that occupation of its exclusive character.

4. Applying the principles in [1997] AC 655, private nuisance protects enjoyment of rights in land. Exclusive possession is the essential requirement. It was unnecessary for the appellant's occupation to be adverse to the true owner or capable of producing title under the Limitation Act 1980. The discussion of wrongful possessors in that authority did not decide the distinct position of a tolerated trespasser.

5. The policy which prevents a new secure tenancy or licence arising during the limbo period did not justify immunising a local authority from liability for its own tortious interference with the occupier's use of the flat. Clarke LJ also regarded Article 8 of the European Convention on Human Rights as a relevant supporting consideration.

6. The matter was remitted to the Lambeth County Court for trial of the nuisance claim and of the negligence claims concerning personal injury and damage to personal property.

• Court of Appeal: Allowed the appeal and remitted the nuisance and remaining negligence claims for trial.
• Lambeth County Court: HHJ Cox determined a preliminary issue on 5 October 1999 and gave judgment for the council on the basis that the tolerated trespasser had no cause of action in nuisance.