In 2002 D was granted a secure tenancy of a flat by the authority in question. As it sometimes occurs, D fell into arrears and in January 2005 the authority managed to get an order for possession. D had to give up the property by 11th February 2005, but the actual enforcement of the order was suspended if D paid the arrears and the current rent.
On the 11th February 2005 the Defendant became a tolerated trespassers, and the rent arrears continued to rise. [I wasn't prepared for this next bit!] A few months later, in June, the Defendant was unfortunately shot in the face by masked intruders, he therefore decided to leave the flat and not return.
Although he informed the authority of what had happened and his subsequent actions, he did not remove his belongings or formally surrender his flat.
In October 2005 he requested a transfer to another borough, but given his rent arrears the authority wouldn't allow it. The Defendant's father paid the arrears the next day [don't ask me how, but I too am curious at the suddeness] - the transfer was acknowledged the next day, as what they termed a "management transfer".
On that same day the authority formally acknowledged that the D was no longer in occupation, but (and much more importantly) remained liable to pay rent and not to terminate the tenancy.
Obviously he did not pay the rent. But he did have his belongings removed in November and in June D was granted a new secure tenancy at another london borough. He notified Merton that he was not in possession of the previous flat on the 6th June 2006.
In May 2006 the authority had begun possession proceedings against D.
Possession Hearing:
- Since D was a tolerated trespasser already (as of 11th Feb 05) fresh proceedings were not needed. All that the authority needed to do was request a warrant, and obviously enforce the order of 2005.
- As to the mesne profits and the liability of D during the period of 11th February 2005 to 6th June 2006, where he was a tolerated trespasser, this remained the outstanding issue to be decided.
- D argued that he only had to pay the mesne profits up unti l the date on which he gave up possession (November by my reckoning).
- C, on the otherhand, successfully argued the opposite, that mesne profits should extend until D gave up possession and had notified the authority of this i.e. 6th June 2006.
Court of Appeal:
Afterall that build up, the court of appeal did allow the appeal.
Given Southport Tramways v. Gandy (a slightly old 1897) the CA held that a former tenant still in possession of property following the end of the tenancy does not remain liable for the continuing rent.
On the date possession is given up (i.e. November 2005), when the D removed his belongings from the Property, that was the final date on which the authority could continue to take mesne profits.
The authority could not add provisos as to the status of the tolerated trespasser in regards rent.
I, personally, am curious to find out who represented the authority in question, or whether it was 'in house'. The status of the suspended possession proceedings should have been flagged up early on, and the legal advisors should have identified a clear path to be followed. It certainly isn't the most cost effective route to take. They did plead in the newer possession proceedings that D had remained a secure tenant - thus the new possession proceeedings. But he was already pronounced a tolerated trespasser early in that year.
I am surprised at some other points, but shall keep them to myself for now.
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2 comments:
God alone knows what Merton were playing at. In different circumstances one could have argued new secure tenancy, no problem, based on what Merton did after the SPO.
But, (and I know I'm going to hate myself in the morning for this) in the Court of Appeal judgment, owing mesne profits wasn't based on when the tenancy ended but on when possession could be said to have been given up. Formal notification not required, unlike a secure tenant, which was the parallel Merton sought to bring.
Giving up possession has two elements, actually leaving and, crucially, the intent to give up possession on the (ex) tenant's part - hence leaving belongings contradicts intent to give up, even if one never actually goes back. Once intent and actual giving up possession are in place, no liability for mesne profits, even if one has not formally told the LA they can have the flat.
It is, as you say, an extraordinary history to this case, and I suspect cases where one wants to argue that possession was given up earlier will not be thick on the ground.
So, do you hate yourself this morning? No? ...goodgood!
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