Jones v London Borough of Merton

A tolerated trespasser’s liability for mesne profits ends when he gives up possession. It does not continue until the former landlord receives notification. Under Housing Act 1985 section 85(3), mesne profits are payments for occupation after the tenancy has ended, and notification is not an additional requirement.

Where no contractual notice obligation applies, cessation of possession requires both an end to factual control or a right to control and an intention to cease controlling the property to the exclusion of others. That intention must be made manifest by conduct. An intention to stop living at premises is insufficient where valuable possessions remain there under the occupier’s control.

Mr Jones had been a secure tenant of a council flat under Part IV of the Housing Act 1985. A possession order ended his tenancy and made him a tolerated trespasser. After a shooting at the flat, he did not return to live there and sought rehousing elsewhere.

The Croydon County Court awarded the London Borough of Merton £3,200.77 in mesne profits. It proceeded on the erroneous basis that a tolerated trespasser could end liability only through a surrender accepted by the landlord. Mr Jones appealed.

The central issues were whether notification to Merton was necessary to end liability for mesne profits and, if not, when Mr Jones had ceased to possess the flat.

1. Appeal allowed. The County Court’s order was set aside and replaced by an award of £343.36 in mesne profits for 10 October to 15 November 2005.
2. The judge had wrongly equated the ending of liability for mesne profits with surrender of a tenancy. Mr Jones was no longer a tenant. As a tolerated trespasser, he was liable for mesne profits only while he occupied or possessed the flat. Neither landlord acceptance nor notification to the landlord was required.
3. Section 85(3) of the Housing Act 1985 describes mesne profits as payments for occupation after termination of the tenancy. That language contains no notification requirement. Further, the distinctive right of a tolerated trespasser to seek revival of the tenancy ends when possession is voluntarily given up: Dunn v Bradford MDC [2002] EWCA Civ 1137. It would be illogical for liability to continue after the status and its associated rights had ended.
4. Possession required factual control and an intention to control the flat to the exclusion of others. The intention had to be inferred from overt acts, consistently with JA Pye (Oxford) Ltd v Graham [2002] UKHL 30. Mr Jones’ decision not to reside in the flat and his requests for rehousing did not alone end possession. Until November 2005 he retained valuable belongings there under lock and key. Those facts showed continuing control and an intention to possess. Retention of keys alone was not decisive.
5. Once his remaining belongings were removed in November 2005, there was no evidence of continuing possession. Merton’s misleading references to a continuing tenancy did not alter the factual conclusion. Wall LJ would have treated possession as ending in October, but concurred in the majority’s order. Arden LJ agreed that cessation required both loss of control and a manifest intention to give up possession.

• Court of Appeal (Civil Division) — allowed the appeal and substituted an award of £343.36: [2008] EWCA Civ 660.
• High Court, Queen’s Bench Division — Tugendhat J transferred the appeal to the Court of Appeal on 11 June 2007 because it raised an important point of principle.
• Croydon County Court — HHJ Ellis awarded Merton £3,200.77 in mesne profits on 21 December 2006. That order was set aside.