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STATUS OF TOLERATED TRESPASSERS

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Martin Godwin, an area estate manager with Swindon BC, has taken issue with views recently expressed in LGC over th...
Martin Godwin, an area estate manager with Swindon BC, has taken issue with views recently expressed in LGC over the status of tolerated trespassers.

'Tolerated trespassers' is a term coined by judges to define former local authority tenants who are subject to suspended possession orders. Such orders are commonly made against tenants who fall into rent arrears. They require those tenants to pay their current rent plus a small amount each week off their arrears. These amounts can be as low as£2.50 a week for people on income support.

As long as the occupants maintain the minimum payments required under the court order they cannot be evicted. The moment they again fall behind, the local authority can apply for their eviction.

The fact that someone is subject to a possession order - even a suspended order - means that the law does not recognise them as a secure tenant. Without this status, they cannot exercise right-to-buy or any of the other rights which Parliament has given to secure tenants. However, tolerated trespassers is a new legal concept with which there are still massive uncertainties. What is the status of tolerated trespassers who have cleared their arrears and associated costs?

Mr Godwin refers to a recent case in which the council successfully argued at Swindon County Court that a secure tenancy did not recommence unless there was some specific action by the council to recreate it.

The tenant in the case had previously breached the terms of the suspended possession order, giving the council the right to evict, but had since cleared all arrears outstanding on the rent account.

Swindon's lawyers took the view that, since there had been no action to recreate a secure tenancy, the occupiers remained as tolerated trespassers and could not repossess the property. The judge granted an outright possession order. Swindon has now formulated policies which assume that secure tenancies will never be recreated unless the council specifically allows them to be.

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