Trespasser or Tenant?

The definition of when a claim against a trespasser can be made is:

"a possession claim against trespassers' means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not;" [CPR 55.1(b)]

An "occupier" of premises has excellent powers in dealing with trespassers. However, a possession order will be required when a landlord (who is not an occupier) turns up at a property to find persons in occupation. 

The hearing date for trespasser claims usually is much quicker than a tenancy case and is detailed below.

This page covers the following examples:

• Two occupants of a property where only one is named as a tenant, and the tenant vacates, leaving the other occupant in possession.
• Tenants vacate but give the keys to another person(s) who takes up occupation after the tenant has surrendered the tenancy.
• The landlord turns up to an empty property to find persons in occupation (whether by forced entry or not)

Position of persons in occupation other than a tenant

Where a tenant (of any type) shares occupation of his accommodation with another, that other person will invariably be a licensee. 

For an example, see Monmouth Borough Council v Marlog [1994] 2 E.G.L.R. 68, C.A., where the tenant entered occupation and used one bedroom, accompanied by the defendant and her two children, who used two bedrooms. The kitchen, bathroom and living accommodation were shared:

"Where two persons move into residential premises together under a tenancy granted to one but not the other of them, each occupying a bedroom or bedrooms and the remainder of the premises being shared between them, the court will be slow to infer a common intention that the one who is not the tenant shall be the sub-tenant of the one who is. The natural inference is that what is intended is a contractual house-sharing arrangement under the tenancy of one of them. The inference is greatly strengthened where, as in the present case, there is written agreement between the landlord and the tenant and none between the tenant and the other occupant" (per Nourse L.J. at 70D).

A former licensee is a trespasser within the meaning of CPR 55.1(b), so the provision that allows for early hearing dates in trespasser claims will apply (55.5(2)) [para 5.016 Residential Possession Proceedings 7th Edition]. (Greater London Council v Jenkins [1975] 1 W.L.R. 155)

A landlord should be careful because the claim here was that the occupant was the sub-tenant of the primary tenant. It could be argued that if the landlord accepted both occupants and perhaps accepted rent from both tenant and occupant, they may both be joint tenants.

Assuming that the occupant remaining in possession is a licensee when the tenancy is surrendered by the "tenant", the license agreement will end, and the trespasser procedure can be used.

Where the landlord gave consent for the lodger (perhaps via a 'permitted occupier' clause), it is submitted the remaining occupier will be entitled to 'reasonable notice' in the form of a letter before any action is taken. A minimum of 14 days may be regarded as 'reasonable', but the longer, the better. A landlord should not demand rent from an occupier in this situation (unless the landlord wants to give a tenancy directly to the occupier) but may be entitled to mesne profits (damages for use and occupation).

Tenant sub-lets part of the dwelling

Where an assured [shorthold] tenant sub-lets part of a dwelling (unlike above, where the occupant was a mere lodger), the primary tenant keeps his status as an assured shorthold tenant. [s4 Housing Act 1988]. However, a landlord may obtain possession using the section 8 notice procedure using Ground 12 (breach of tenancy obligations).

Tenant sub-lets whole dwelling

Tenancy Lawfully sub-let

Where an assured, [shorthold] tenant lawfully sub-lets the whole of the dwelling-house on another assured shorthold tenancy (i.e. by seeking the landlord's consent or if there is no provision in the tenancy prohibiting sub-letting during the fixed term). The sub-tenancy will continue as an assured shorthold. If the superior tenancy is ended, the sub-tenancy continues, and the head landlord becomes the landlord of the sub-tenant. [s18 Housing Act 1988]. Therefore any lawful sub-tenant would need to be ended in the usual ways (section 8 or section 21 notice).

Tenancy unlawfully sub-let

It is an implied term of every assured [shorthold] periodic tenancy that, except with the consent of the landlord,  the tenant shall not (a) assign the tenancy in whole or part, or (b) sub-let or part with possession of the whole or any part of the dwelling-house let on the tenancy [s15(1) Housing Act 1988]. The landlord, therefore, has the absolute right to refuse such an assignment, sub-letting or parting with possession, and he does not have to show his refusal was reasonable [s15(2)]. This only applies to a statutory periodic tenancy (a tenancy that has arisen after the ending of the fixed term).

Where an assured [shorthold] tenant sub-lets the whole of the dwelling, then the original head tenant will most likely lose his status of being an assured [shorthold] tenant because the dwelling can no longer be his only or principal home [Ujima Housing Association v Ansah (1997) 30 H. L. R. 831, C.A.]. In this case, the head tenancy can be ended by notice to quit, or maybe forfeiture and a possession order are obtained in the usual way (similar to the section 8 procedure). 

If the sub-tenancy was not granted lawfully, then the sub-tenancy will end with the head tenancy or, as it is often graphically expressed, "the branch falls with the tree" [Moore Properties (Ilford) Ltd v McKeon (1976) 1 W.L.R. 1278]. The sub-tenancy ends even if the notice to quit has been served with the consent of the head-tenant [Barrett v Morgan (2000) L. & T.R. 209, H.L.). However, if the tenancy has "truly" been sub-let, then the trespasser possession procedure is not the appropriate route, and the standard procedure should be followed.

A sub-letting of the whole term operates as an assignment. An assignment is different to a sub-letting because the estate in land is transferred from the first tenant to the new tenant. However, an assignment by a tenant is ineffective in passing the tenant's legal estate to the proposed assignees unless it is made by deed [s52(1) Law of Property Act 1925]. A deed is not required if the landlord expressly or impliedly agrees to the assignees becoming the tenant and accepts him in place of the former tenant.

The tenant passes the keys to another person.

Where the original tenant has expressly surrendered the tenancy to the landlord or ideally has given a notice to quit, which has ended the tenancy but then passed keys to another person, there are a couple of possible arguments the occupant will raise.

1. They may say that the property was sub-let to them from the original tenant. In this case, though, assuming no consent was obtained, the sub-letting would have been unlawful (see above). It is respectfully submitted that it was not possible for the original tenant to sub-let because if he had surrendered the tenancy or notice to quit had ended it, then there was no tenancy to sub-let. In any event, the landlord should obtain a witness statement from the original tenant confirming no sub-letting, assignment or parting with possession occurred. The trespassing procedure will be available with this witness statement confirming the occupier is not telling the truth. If the court decided there was a sub-letting, the original tenant would continue to be liable for the rent, and his tenancy should be ended by notice to quit or forfeiture, which will end the sub-tenancy. The original tenant will likely be helpful to a landlord because otherwise, their tenancy continues, and rent remains payable. The quicker trespasser procedure is unavailable to a "genuine" sub-tenant (whether the sub-letting was lawful or not).

2. The other argument could be that the original tenant assigned the occupier the tenancy. However, to argue this, they must produce the Deed as required by section 52 Law of Property Act 1925 (see above) (subject to the landlord not giving consent). A failure to provide the Deed would prove that no such assignment occurred. However, if the court decided an assignment has taken place, the trespasser would be your tenant, and the usual possession procedure would need to be followed (not the trespasser procedure).

On both points 1 and 2 above. If the tenant claims the sub-letting or assignment, as the case may be, were on the terms that no rent was payable, then any tenancy or assignment could not be an assured shorthold tenancy [sch1 Housing Act 1988]. In addition, a tenancy where there is no money's worth for rent is not protected by the Protection from Eviction Act 1977 and is described as an "excluded tenancy". Therefore, no notice or court order is required to regain possession (at common-law, some reasonable notice is required). A landlord could use the self-help method (without violence etc., to secure entry). The defendant occupier should supply evidence of rent being paid because a failure to provide such evidence could lead the court to believe that no such sub-letting or assignment took place.

In addition to being rent-free, another "excluded tenancy/licence" is one by section 3A(6) Protection from Eviction Act 1977 if:

... it was granted as a temporary expedient to a person who entered the premises in question or any other premises as a trespasser (whether or not, before the beginning of that tenancy or licence, another tenancy or licence to occupy the premises or any other premises had been granted to him)...

If this type of excluded tenancy/licence applies, the landlord can obtain a court possession order and possession by self-help means for which see here. In all cases of an excluded tenancy/licence, "reasonable notice" must always be given (see the link earlier for guidance).

If the trespasser claims that they have sub-let the property from the primary tenant, this would be for a court to decide whether this was the case. A defendant wishing to make such a claim would be wise in any defence to being a trespasser to provide the written agreement.

Possession proceedings

If you believe the occupier is a true trespasser, allow the quicker trespasser procedure; see here for that procedure.

If you believe the occupier to be a tenant, use this guide.