Renting Homes: The Final Report - Law Commission

4.53 In accordance with the “use it or lose it” principle, there are fundamental terms
providing that a possession claim cannot be brought more than six months from
the date on which the possession notice was given. 66 Once that time has
elapsed, proceedings cannot be brought until after a new possession notice is
given.
Effect of possession order
Removing the tolerated trespasser
4.54 One of the problems with the current law is that, where a suspended possession
order is made, and the tenant breaks one of the terms of that order (such as to
pay arrears of rent), this brings the tenancy to an end, by operation of law. In
practice, the former tenant often carries on living in the premises. The former
tenant then enters a form of legal limbo – living there, but with no specific
contractual entitlement to be there.
4.55 The courts have dealt with this by creating a new form of legal status – the
“tolerated trespasser”. 67 In legal logic, this is an impossibility; a trespasser by
definition has no rights to be on the land and therefore cannot be tolerated. We
want to abolish this troublesome concept.
4.56 The Bill provides that, where a court has made a possession order, the contract
comes to an end:
(1) where the contract-holder gives up possession of the premises on or
before the date specified in the order, on that specified date;
(2) where the contract-holder gives up possession of the premises after the
date specified in the order but before the order is formally executed, on
the date the contract-holder gives up possession;
(3) where the contract-holder does not give up possession of the premises
until the order is executed, on the date when the order is executed. 68
(4) where the court makes a possession order against joint contract-holders,
and it is a condition of the order that the landlord offers a new contract of
the same premises to one or more (but not all) of them, the occupation
contract in respect of which the possession order is made comes to an
end immediately before the effective date of the new contract. 69
66 Cls 169(3), 184(4), 186(2)(b) and 188(2)(b).
67 Burrows v Brent LBC [1996] 4 All ER 577, by Lord Browne-Wilkinson at 584.
68 Cl 154(1).
69 Cl 154(2) and (3). Further principles relating to the termination of occupation contracts with
joint contract-holders are discussed below at para 4.84 onwards.
75