buying or selling a house

Brother Succeeds to Tolerated Trespass Property Right

on Friday, 23 March 2012. Posted in News, Legal Disputes, Buying or selling a house

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.
Jonathan Harvey was a student at the time of the accident. He had been out drinking with friends and had consumed up to eight pints of beer prior to being dropped off by a taxi outside a Tesco store in Plymouth. He and a friend ran away from the taxi in order to make another member of the group pay the fare because they thought he had paid less than his fair share earlier in the evening.

Mr Harvey ran towards the bushes. In the dark, he did not see the five-metre drop behind a badly maintained fence and he fell down onto the car park beneath. He very nearly died in the accident and now has difficulty walking and talking.

The land from which Mr Harvey fell was owned by Plymouth City Council and he sued the Council for failing to maintain the fence properly, alleging that this constituted a breach of its duty under the Occupiers' Liability Act 1957.

In the lower court, the judge ruled that Mr Harvey bore a significant proportion of the blame for the accident. In his view, had Mr Harvey been sober he would have made his way more carefully through the unlit area. By running into it, he significantly added to the probability that he would injure himself in some way.

The court found Mr Harvey 75 per cent responsible for the accident. Plymouth Council appealed against the finding that it was 25 per cent liable.

The Court of Appeal ruled that Mr Harvey was not a visitor to the land for the purposes of the Act and so no compensation was due. At issue was whether the Council was deemed to have given implicit permission for his activities.

The decision will be greetedSince 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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