“The late Mr Alan Austin was granted a secure tenancy by the London Borough of Southwark in July 1983 and an order for possession was made on4 February 1987 . It was an order that was not to be enforced so long as payments were made. It is common ground that by reason of the order and the payment history, he has become what has been known as a tolerated trespasser. I do not need to go any further into that issue for the purposes of this application. The late Mr Alan Austin was permitted to continue residing in the property until his death on8 February 2005 . It is Mr Barry Austin’s case, and I accept it for the purposes of this application, that since October 2003 he has been living with and in fact nursed his brother through the last year or so of his life and if this was a subsisting tenancy, then it would have been open to Mr Barry Austin to have become a tenant by succession from a member of the family under section 87 of the Housing Act. But what in fact he wishes to do through the estate of his late brother is to make an application under section 85 of the Housing Act so as to postpone the date of possession and so that the tenancy can be restored. That is the underlying purpose of this application.”
“(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.”
“81. The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.”
“(2) Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.”
“…it is worth referring to the recent citation by Lord Hope of Craighead in Kay v Lambeth London Borough Council[2006] UKHL 10 ,[2006] 2 AC 465 , 507 of Lord Porter's observation in Baker v Turner[1950] AC 401 , 417 that “the rules of formal logic must not be applied … with too great strictness” to legislation conferring security of tenure on residential tenants. While normal principles of interpretation should not, of course, be jettisoned, the importance of the law in this field being substantively and procedurally clear and simple is cardinal.”
“The Act must be interpreted with liberality having regard to its social purposes, and also with recognition of the claims of others and the nature and scale of local authorities' responsibilities.”
“Following the reasoning of the House of Lords in Burrows, the tenancy came to an end when the order of31 May 1989 became operative. The orders for suspension did not revive the tenancy. They merely postponed execution so long as the conditions of suspension were met and therefore prolonged the possibility of the tenancy being revived. As far as the appellant is concerned, there was, at the date of her mother's death, no tenancy to which she could succeed. Having regard to the speeches in Burrows, Miss Morris, who appeared for the appellant, did not suggest that the tenancy subsisted at the date when the appellant's mother died. She submitted, as Burrows made clear, that the tenancy was potentially continuous and could be revived and, if revived, the tenancy retrospectively was continued. She submitted that at the date when the appellant's mother died, it was possible to make an application under s 85 to postpone the order for possession which would have revived the tenancy. That, she submitted, was an interest in the property which the appellant's mother possessed at the date of her death. The appellant had succeeded to that interest both as her daughter and because she was, like her mother, a "tolerated trespasser" and was therefore entitled to apply for a postponement order and, if so, the tenancy would revive on her application. Those submissions are untenable. The right to apply for a postponement of an order for possession is not an interest in land capable of being inherited. Further, the right to apply under s 85 is a right given to the tenant and in subs (5) to the tenant's spouse or former spouse. Section 87 also gives a right to apply to a person who is qualified to succeed as a tenant under a secure tenancy. That section only applies where there is a tenancy in existence. That was not the case here. To be a tolerated trespasser of the kind contemplated in Burrows, the person must be a trespasser tolerated by the law. The appellant was not such a person. In my view, there is no right given to a person in Miss Knightley's position to apply to revive a tenancy and no tenancy existed at the time when her mother died. I conclude that the appellant had no right and does not have any right in respect of the tenancy that existed between the respondents and the appellant's mother. I conclude that the Judge came to the right conclusion and this appeal should be dismissed.”
“Article 1Protection of property “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“106Article 1 of the First Protocol has a similar character [to art 6(1)]. It does not confer a right of property as such nor does it guarantee the content of any rights in property. What it does instead is to guarantee the peaceful enjoyment of the possessions that a person already owns, of which a person cannot be deprived except in the public interest and subject to the conditions provided for by law: Marckx v Belgium(1979) 2 EHRR 330 , 350, para 50. Here too it is a matter for domestic law to define the nature and extent of any rights which a party acquires from time to time as a result of the transactions which he or she enters into. One must, of course, distinguish carefully between cases where the effect of the relevant law is to deprive a person of something that he already owns and those where its effect is to subject his right from the outset to the reservation or qualification which is now being enforced against him.”