| HOUSING — Secure tenancy — Order for possession suspended provided tenant paid rent arrears — Tenant assaulted by assailants while in occupation as tolerated trespasser and deciding not to return to flat — Tenant retaining keys even after collecting his personal belongings — Whether liability to pay mesne profit continuing until tenant notified landlord his occupation had ceased
Merton London Borough Council v Jones; [2008] WLR (D) 194
CA: Arden, Wall and Wilson LJJ: 16 June 2008
The liability of a tolerated trespasser to pay mesne profits to a former public landlord terminated when the tolerated trespasser had decided to give up possession and had removed his belongings from his dwelling house, and not at the time when the former landlords were formally notified that he was no longer in possession of the dwelling, even though the tolerated trespasser continued to retain the keys to the dwelling.
The Court of Appeal so stated in a handed down judgment allowing the appeal of the tenant, Anthony Jones, from the judgment of Judge Ellis given on 21 December 2006 at Croydon County Court ordering the former tenant to pay Merton London Borough Council, £3,200 by way of mesne profits on the flat at 24 Pains Close, Mitcham, Surrey from 3 October 2005 to 25 September 2006. By a possession order made on 11 January 2005 the tenant became a tolerated trespasser from 11 February. On 23 June 2005 the tenant was attacked by two assailants in the flat and thereafter he never returned to the flat. In July the tenant’s friend collected all his personal belongings from the flat and the police also informed Merton that he had chosen not to return to the flat. In June 2006 he was housed by Hammersmith and Fulham London Borough Council. Merton issued the present proceedings and in July or September 2006 the tenant notified Merton that he had been housed by Hammersmith and Fulham.
WILSON LJ said that it would indeed be odd if the tenant were liable for mesne profits in respect of a period after he had given possession in belated compliance with the order made against him. But more significant, surely, were the terms of s 85(3) of the Housing Act 1985, which, in the context of the stay or suspension of execution of an order for possession against a tolerated trespasser, defined “mesne profits” as “payments in respect of occupation after the termination of the tenancy”. Whether or not, as Lord Browne-Wilkinson suggested in Burrows v Brent London Borough Council [1996] 1 WLR 1448, the word “occupation”, as there used, was entirely synonymous with the word “possession”, it was impossible to read into it any element of notification. By 3 October 2005 the tenant had relinquished his intention to possess the flat. His retention of the keys by itself did not demonstrate that he remained in possession of the flat but that, by retaining them, he had foregone a good opportunity to demonstrate to the contrary. In the end it was not possible to attach any significance to his retention of the keys. The real problem was that, no doubt unintentionally, Merton misled the tenant. They repeatedly misinformed him that he was a “tenant” and thus that, until the “tenancy” was brought to an end, he was obliged in law to continue to pay the “rent”; and they added that, while his application for transfer was pending, he should not bring the “tenancy” to an end.
WALL LJ gave a concurring judgment agreeing with Wilson and Arden LJJ.
ARDEN LJ, concurring, said that it was clear that to acquire possession a person should both obtain physical control of the relevant property and have formed an intention to control the use of that property to the exclusion of others. The occupier should cease to control, or to have a legal right to control, the use of the property, and, in addition, he should have ceased to have an intention to control the use of the property to the exclusion of others.
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