London Borough of Newham v Hawkins & Ors

A tolerated trespasser does not ordinarily acquire a fresh secure tenancy merely because the landlord permits continued occupation and accepts payments after breach of a suspended possession order. The question is whether the parties objectively intended a new tenancy. In the secure-tenancy context, an agreement to forbear from enforcement will usually operate only as indulgence while the former tenancy remains capable of revival by court order.

A fresh tenancy requires special circumstances indicating such an intention, such as an offer of a new agreement on new terms. Describing payments as rent, treating the occupier administratively as a tenant, and inviting payment of arrears do not alone suffice.

Mrs Hawkins had succeeded to her late husband’s secure tenancy. After she breached a suspended possession order, the local authority allowed her to remain in occupation for several years while she made satisfactory payments. Following her death, her sons and grandson claimed succession rights under section 87 of the Housing Act 1985.

HHJ Hornby, sitting in Bow County Court, made a possession order. He held that Mrs Hawkins remained either a tolerated trespasser or a successor under the original tenancy, and that no new tenancy had arisen. The appellants appealed, contending that the parties’ conduct created a new tenancy from which they could succeed.

1. The Court of Appeal unanimously dismissed the appeal. The appellants could succeed only if Mrs Hawkins held a tenancy in her own right when she died. She did not: she remained a tolerated trespasser and had not acquired a fresh tenancy.

2. Under section 82(2) of the Housing Act 1985, a secure tenancy ends on the date fixed for possession. A tenant who breaches the conditions of a suspended possession order and remains with the landlord’s permission is ordinarily a tolerated trespasser. The former tenancy is at an end, although it may be revived.

3. Section 85 preserves the court’s power, until execution of the possession order, to postpone possession or discharge the order. A variation of the possession date can revive the original secure tenancy retrospectively. A tolerated trespasser may also seek discharge under section 85(4), subject to the statutory conditions. The court applied the analysis in Burrows v Brent London Borough Council [1996] 1 WLR 1448.

4. Forbearance by a landlord during this intervening period does not, without special circumstances, create a new secure tenancy. The decisive question is the parties’ objectively manifested intention. Continued occupation and satisfactory payments are naturally referable to an agreement not to enforce possession, while leaving open the possibility of reviving the former tenancy.

5. Newham neither offered a new tenancy nor proposed new terms or an increased rent. Its 1997 arrears letter, despite referring to rent and being addressed to Mrs Hawkins as a tenant, was an invitation to make payments and not an offer of a new tenancy. Swindon BC v Aston [2003] HLR 610 was distinguishable because the landlord there had issued a new tenancy agreement containing new terms and relied on breach of one of them.

6. The appellants’ late argument about the terms of the 1991 possession order required further factual investigation and could not be raised at this stage.

• Court of Appeal (Civil Division) — unanimously dismissed the appellants’ appeal: [2005] EWCA Civ 451.
• Bow County Court — HHJ Hornby made a possession order, holding that Mrs Hawkins had not acquired a new tenancy capable of succession by the appellants.