Tolerated trespassers

Austin v Southwark London BC [2010] UKSC 28; SJ 29 June p42

Alan Austin was a secure tenant against whom an order for possession was made after he fell into arrears with his rent. The order provided it was not to be enforced as long as Alan Austin paid the arrears by 4 March 1987 which he failed to do and accordingly under the terms of the order it became enforceable. However, Alan Austin remained in the premises paying rent plus amounts towards the arrears until his death in 2005. In 2003, his brother Barry had moved into the property to care for him. After Alan’s death the local authority served a notice to quit on Barry and issued possession proceedings against him. The issues were (i) whether under the Housing Act 1985 s82(2) a secure tenancy ended on a breach of the conditions of a suspended possession order, or whether it endured until the order for possession was executed; or (ii) whether the former tenant’s right under s85(2)(b) of the Act to apply to postpone the date of possession, and thus revive the secure tenancy, survived his death and passed to his estate.