Supreme Court identifies fundamental error in Housing law after 20 years

Wednesday 23 June 2010

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Austin v London Borough of Southwark (Respondent) [2010] UKSC 28
(23 June 2010)

Lady Hale writes the definitive obituary of the "tolerated trespasser". Mr Austin wins the right to apply to revive his late brother's tenancy - Knightley overruled

The Supreme Court, allowing Mr Austin's appeal, decided: (1) that the death of a former secure tenant does not deprive the court of its jurisdiction to revive their tenancy under the Housing Act 1985 and (2) that - although it had stood for more than a decade - the contrary decision in Brent LBC v Knightley (1997) 29 HLR 857 (CA) should be overruled as wrongly decided. Lambeth County Court must now allow Mr Austin, on behalf of his late brother's Estate, to make that application, with a view to him succeeding to the tenancy of his late brother's council flat.

The judgment also considered whether the decision in Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, which gave rise to the concept of a "tolerated trespasser" and was later accepted as correct by the House of Lords in Burrows v Brent LBC [1996] 1 WLR 1448 should be overruled. Lady Hale in particular, was extremely critical of the concept of a "tolerated trespasser". The Court nevertheless held back from formally overruling the earlier cases as Parliament had recently devised a solution to the problem by means of the Housing and Regeneration Act 2008. Lord Walker expressed the Court's overall conclusion on the concept of a "tolerated trespasser" in the following terms:

"I have nothing to add except to express my admiration for the concurring judgment of Lady Hale, who has written the definitive obituary of the "tolerated trespasser." Indeed her trenchant analysis clearly demonstrates that this unfortunate zombie-like creature achieved a sort of half-life only through a series of judicial decisions in which courts failed, or did not need, to face up to the theoretical and practical contradictions inherent in the notion. But in common with all the members of the Court I agree that Parliament is best fitted to give the tolerated trespasser his quietus, as it has by the Housing and Regeneration Act 2008". (See at para [43])

The case was brought by Mr Barry Austin, represented by Jan Luba QC and Desmond Rutledge of the Housing team at Garden Court Chambers.

For the full judgment, click here.

For the Supreme Court Press Summary, click here.

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