New Leases for Tolerated Trespassers

Following a change in the law, a tenant can no longer have the status of a ‘tolerated trespasser’.

Under the old regime, a tenant who had defaulted on their rent could, by paying the rent after a possession order had been made, become a tolerated trespasser, if the landlord did not seek to enforce the possession order and continued to allow the tenant to occupy the property, paying the rent due.

Tolerated trespass led to many disputes in the court over what rights tolerated trespassers did or did not have. Recently, the application of the concept was limited, by the House of Lords, to assured tenants, but the Housing and Regeneration Act 2008 has now brought an end to tolerated trespass from 20 May 2009.

Under the Act, existing tolerated trespassers will become tenants once again provided:

• the home is the individual’s only or principal home throughout the termination period;
• the former landlord is entitled to re-let the property; and
• the former landlord has not entered into a new tenancy in respect of the property.

Tenants who have previously been tolerated trespassers will probably be offered a new lease by their landlord and should consider its terms and take advice if necessary.