Tolerated trespasser

Newham London Borough Council v Hawkins and others CA TLR 3 May

Mrs Hawkins acquired the tenancy of council property on the death of her husband but had fallen into arrears of rent. The council obtained a possession order granting possession in 28 days, suspended on condition of payment of rent plus £5 a week towards the arrears. The order had subsequently been breached. The council agreed to Mrs Hawkins’s continued occupation and to forbear from enforcing the possession order so long as her occupation was satisfactory. She might have revived the tenancy by applying for postponement of the possession order under s82 of the Housing Act 1985 but she had not done so. On her death her children’s claim to be entitled to the tenancy as successors to Mrs Hawkins failed because her occupation as a tolerated trespasser did not result in the acquisition of a new tenancy, she merely remained in possession and continued to pay rent. To create a new tenancy there had to be evidence of intention such as an offer of new terms or a demand for increased rent in the absence of an order of the court under s82. Accordingly the defendants were not entitled to remain in possession as her successors.