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Brother Succeeds to Tolerated Trespass Property Right

A tolerated trespasser is a person who has had an eviction order made against them but who remains in occupation of the property with the landlord’s acquiescence because they continue to pay rent.

Since the Housing and Regeneration Act 2008 came into force, a new tolerated trespass cannot arise because, in the above circumstances, the tenant is now granted a new tenancy similar to that which they would otherwise have had.

However, there remain existing tolerated trespassers and the court recently had to determine what happens on the death of someone who occupies a property on this basis. Normally, when a social housing tenant dies, the next of kin have the right to continue the tenancy. In the circumstance in which the property is occupied by a tolerated trespasser, however, there is no tenancy to which the next of kin could succeed.

The case was brought by a man who had moved in with his brother to look after him prior to his death. His brother was a tolerated trespasser and when he died, the council applied to obtain possession of the flat. The case reached the Supreme Court, which found that the man should be given the right to succeed to his late brother’s ‘tenancy’.

The decision will come as a relief to family members of people who occupy their properties as tolerated trespassers.

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