Tolerated trespass

Section 8(2) of the Housing Act 1985 provides that a secure tenancy ends on the date fixed by the court order for giving possession. This is subject to s85(2) which gives the court power to postpone the date of possession. Section 85(2) empowers the court to postpone the date of possession and s85(2)(a) to stay or suspend the date of execution. If the court postpones the date of possession, the secure tenancy does not end until that date. Accordingly, the crucial date is that of the execution of the order, not termination of the tenancy, because, until execution, the tenant can apply to court to vary the order substituting a new date for possession. On making such an order, the old secure tenancy is revived. In Harlow District Council v Hall [2006] All ER (D) 393 (Feb) the Court of Appeal surprisingly held that if the court orders possession to be given on a specified date and postpones execution on terms, the tenancy nevertheless ends on the specified date even if all the conditions of postponement were met. The tenant becomes a ‘tolerated trespasser’ and loses his rights as a tenant, such as claims for disrepair, the right to buy and the right of succession for family members. In Bristol City Council v Hassan; Bristol City Council v Glaston Direct [2006] All ER (D) 321 (May) it was held that courts are not obliged to specify a date of possession in the order and are therefore not obliged to render a secured tenant a tolerated trespasser. With commendable alacrity the DCA introduced a new Form N28A and embodied the procedure approved in Hassan in a new paragraph 10 inserted in CPR PD55 explaining how suspended possession orders may be made by ordering the tenant to give up possession, but the date on which possession is to be given is postponed to ‘a date to be fixed by the court on an application by the claimant’. Here is the new provision: