Austin v London Borough of Southwark

This is an appeal from the order of Flaux J dated 29 January 2008 dismissing an appeal from HHJ Welchman sitting in the Lambeth County Court. It raises an important point about the right to succeed to a secure tenancy which has terminated during the lifetime of the tenant as a result of a possession order, but with the former tenant remaining in possession as “a tolerated trespasser”, and having a right to apply for the revival of his tenancy under s 85 of the Housing Act 1985 (“the 1985 Act”) immediately prior to his death. The appellant, Mr Barry Austin, is the person who would have succeeded to such a tenancy if it had existed at the date of the death of his brother, Mr Alan Austin. He applied to the court pursuant to CPR 19.8 (set out below) to be joined to the possession proceedings that led to the loss of his brother’s tenancy to represent the estate of his brother in order that as such representative he can exercise the right to apply to the court for revival of the tenancy. The respondent is the former landlord (“Southwark”). In my judgment, for the reasons given below, this appeal must be dismissed.

A former tenant, in the position of Mr Alan Austin, who remains in possession with the consent of the landlord after termination of a secure tenancy, is known to the law as a “tolerated trespasser”. There are a large number of tolerated trespassers. The estimate made by the government in a consultation paper in August 2007 was that some 250,000 new tolerated trespassers had acquired that status since 2001 alone: see Tolerated Trespassers - A Consultation (August 2007) Department for Communities and Local Government, HC 04533/14. The courts have developed a jurisprudence about tolerated trespassers which is based on provisions of the 1985 Act.

Parliament has now passed the Housing and Regeneration Act 2008 (“the 2008 Act”). The 2008 Act, which has not yet been brought into force, contains provisions designed to ensure that tenants do not acquire the status of tolerated trespasser in future. Under the present law a secure tenancy terminates on the date on which the tenant is to give up possession in pursuance of the possession order, and not when (if ever) the order is executed. Under the 2008 Act, the secure tenancy will not terminate until the order is enforced and possession is actually taken. In addition, the 2008 Act contains provisions designed to ensure that certain tolerated trespassers at the date of the commencement of the 2008 Act are put back into the position of secure tenants. They will be given replacement secure tenancies with the additional terms contained in the possession order which previously resulted in their being tolerated trespassers. Thus the clear legislative policy has been to protect and enhance the legal position of tolerated trespassers at the date of the commencement of the 2008 Act and to restore them to their rights as secure tenants. However, the issues raised by this appeal could potentially apply to any tolerated trespasser whose death occurs before the commencement date of the 2008 Act or who is not entitled to a replacement tenancy under that Act.

No findings of fact have been made at this stage in the present case but the background can be taken from the judgment of HHJ Welchman:

“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 on 4 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 on 8 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.”

Mr Alan Austin became a tolerated trespasser when he failed to comply with the conditions set out in the possession order made on 4 February 1987. Mr Jan Luba QC, for Mr Barry Austin, estimates that Mr Alan Austin was in possession as a tolerated trespasser for over fifteen years. Mr Alan Austin died intestate. There has as yet been no administration of his estate.

HHJ Welchman held that CPR 19.8 had no application, and that an application under s 85 could not be made after Mr Alan Austin’s death. From that decision, Mr Barry Austin appealed to the High Court. The appeal was heard by Flaux J, who dismissed the appeal. Before the judge, Mr Barry Austin relied on the First Protocol to the European Convention on Human Rights (“the Convention”). The judge rejected this submission. He held that, in Brent LBC v Knightley (1997) HLR 857, this court decided that the right to apply under s 85 was not a right of property. The judge held that there was no deprivation of any property and article 1 of the First Protocol did not confer any rights of property. The judge also held that in any event he would not exercise the discretion under CPR 19.8 as sought by Mr Barry Austin.

Part IV of the 1985 Act contains the statutory scheme applying to secure tenancies. In outline, s 79(1) of the Housing Act 1985 defines a secure tenancy as follows:

“(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.”

The landlord and tenant conditions are defined in ss 80 and 81. So far as relevant, the landlord condition is that the landlord is a local authority. The tenant condition makes it clear that the tenant must be an individual and must occupy the property the subject of the tenancy as his only or principal home:

“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.”

On the face of it, s 81 suggests that a secure tenancy automatically ceases to be secure when the tenant dies. However, ss 87 to 89 confer certain succession rights on secure tenants. I need only set out ss 87 and 89:

“87.

A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either—

(a)

he is the tenant's spouse [or civil partner], or

(b)

he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;

unless, in either case, the tenant was himself a successor, as defined in section 88.

89.

(1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.

(2)

Where there is a person qualified to succeed the tenant, the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules -

(a)

the tenant’s spouse is to be preferred to another member of the tenant’s family;

(b)

of two or more other members of the tenant’s family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.

(3)

Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy -

(a)

when it is vested or otherwise disposed of in the course of the administration of the tenant’s estate, unless the vesting or other disposal is in pursuance of an order made under -

(i)

section 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings),

(ii)

section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc.),

(iii)

paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or

(iv)

Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)

(b)

when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order.

(4)

A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.”

Accordingly, when the tenancy was granted to Mr Alan Austin, it was an incident of the tenancy that it would pass to his successors in accordance with s 87 of the Act. There is no need for a successor to make an application under s 89. Any vesting is automatic. Where there is no successor, the tenancy does not automatically cease to be a secure tenancy at the death of the tenant. If there is no person who is qualified to succeed to the tenancy, it does not cease to be secure until that time specified in s 89(3) arrives. When it ceases to be a secure tenancy, it becomes a contractual tenancy only.

Part IV deals with the situation where a secure tenant fails to make payments of rent or is otherwise in breach of the terms of his tenancy agreement. The court may make a possession order against him on certain specified grounds (it is unnecessary to set those grounds out). S 82(2) of the 1985 Act provides that the tenancy comes to an end on the making of an order for possession:

“(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.”

However, s 85 confers an extended discretion on the court, at any time before a possession order takes effect, to postpone the date for possession or make certain other orders. It provides:

“85 (1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.

(2)

On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—

(a)

stay or suspend the execution of the order, or

(b)

postpone the date of possession, for such period or periods as the court thinks fit.

(3)

On such an adjournment, stay, suspension or postponement the court -

(a)

shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b)

may impose such other conditions as it thinks fit.

(4)

If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.

(5)

Where proceedings are brought for possession of a dwelling-house which is let under a secure tenancy and—

(a)

the tenant's spouse or former spouse, or civil partner or former civil partner, having home rights under Part IV of the Family Law Act 1996, is then in occupation of the dwelling-house, and

(b)

the tenancy is terminated as a result of those proceedings,

the spouse or former spouse, or the civil partner or former civil partner, shall, so long as he or she remains in occupation, have the same rights in relation to, or in connection with, any adjournment, stay, suspension or postponement in pursuance of this section as he or she would have if those home rights were not affected by the termination of the tenancy.

The most important exercise of discretion conferred by s 85 for the purpose of this appeal is the discretion to postpone the date of the possession and that date can be postponed from time to time notwithstanding that the original date for possession has passed. If an order postponing the date of possession is made, so that any possession order that had come into force will only come into force at a future date, the secure tenancy will be revived with retrospective effect. Moreover, the discretion can be used retrospectively to revive a secure tenancy that was extinguished at the date of the original order. An order made in exercise of this power is sometimes described as a "Lazarus order" or "revival order".

The leading authority on the extended discretion is Burrows v Brent LBC [1996] 1 WLR 1448. In this case, the House of Lords approved the concept of a “tolerated trespasser”, that is a former tenant under a secure tenancy whose tenancy has terminated but who remains in possession with the consent of the landlord. His statutory and contractual tenancy has come to an end but he remains entitled to make an application under s 85 of the 1985 Act. The House held that any former tenant could apply to the court under s 85 Act at any time for an order varying the date on which possession is to be given. The House further held that the effect of such an order would be retrospectively to revive the old secure tenancy, together with its covenants.

If, however, a tolerated trespasser dies, there will at the moment of his death be no secure tenancy to which these succession rights apply. That is why it is of crucial importance to Mr Barry Austin to find a way of applying to the court under s 85 to postpone the date for possession until after the death, thus reviving the tenancy at the moment of death. That is his only chance of having the secure tenancy that Mr Alan Austin formerly enjoyed vested in him.

CPR 19.8 provides:

“19.8

(1)     Where a person who had an interest in a claim has died and that person has no personal representative the court may order—

(a)

the claim to proceed in the absence of a person representing the estate of the deceased; or

(b)

a person to be appointed to represent the estate of the deceased.

(2)

Where a defendant against whom a claim could have been brought has died and—

(a)

a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;

(b)

a grant of probate or administration has not been made—     

(i)

the claim must be brought against “the estate of“ the deceased; and 

(ii)

the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

Mr Barry Austin relies on CPR 19.8 (1)(b). There is no suggestion that Southwark needs to take any step in the proceedings against Mr Alan Austin’s estate but, if it had wished to do so, it would have needed to proceed under CPR 19.8(2)(b). The action is otherwise stayed (see re Amirteymour, dec’d. [1979] 1 WLR 63).

It will be noted that CPR 19.8(1) applies where a person who had “an interest in a claim” has died. There is no authority on the meaning of these words but on their natural meaning they cover the situation where the deceased was either the sole or the partial legal and beneficial owner of the claim. As the judge observed, that interest must exist at the date of death. The judge took the claim in this case to be the claim to make an application under s 85, but Mr Luba submits that that was wrong and that “the claim” is the claim made against Mr Alan Austin in the possession proceedings. As I see it, the judge was right on this point. The only subsisting claim (if any) at the date of death was the claim to make an application under s 85. His claim to defend the possession proceedings had merged into the possession order.

The hearing of this appeal took place before the House of Lords delivered their speeches in Knowsley Housing Trust v White [2009] 2 WLR 78. When that decision became available, counsel filed further written submissions in accordance with the court’s directions. Knowsley does not decide any issue on this appeal, and it contains a general overview of the law on tolerated trespassers and provides guidance on the interpretation of Part IV of the 1985 Act and so it is the appropriate starting point in this case.

In Knowsley, three appeals were heard together. In the first case, Knowsley, the question was whether a former assured tenant under a different statutory scheme, namely that contained in the Housing Act 1988, was entitled to exercise the right to buy notwithstanding a breach of a suspended possession order. The House held that a tenancy had not terminated on breach of the order. The second appeal, Porter v Shepherds Bush Housing Association, concerned the question whether a secure tenant, who had complied with the terms of a suspended possession order, could apply under s 85(4) for discharge of the order (thus removing what had become known as the Swindon gap, after the decision of this court in Swindon BC v Aston [2003] HLR 610). The House of Lords held that he could. In the third case, Islington Borough Council v Honeygan-Green, a secure tenant had exercised the right to buy but had then lost her tenancy as a result of breach of the terms of a suspended possession order. However, that order was discharged and the tenancy was revived retrospectively by an order made under s 85. The House held that the right to buy, including the accrued steps taken before the possession order was made, revived when the order of possession was discharged.

As to the law on tolerated trespassers, the House considered but rejected the idea that it should reconsider the correctness of the decision in Burrows. As Lord Walker of Gestingthorpe put it, that decision had “become too firmly embedded to be dislodged" ([4]). At the same time, however, the House recognised that the status of tolerated trespasser had led to a number of legal difficulties. Among these was the problem that had arisen in Brent LBC v Knightley, which is the cornerstone of the respondent’s argument on this appeal and which I shall have to consider in detail below. Lord Neuberger summarised some of the difficulties as to the rights of a tolerated trespasser as against his former landlord. In the course of doing so, he summarised the result of Knightley (without apparent criticism or qualification) as follows:

“In Brent London Borough Council v Knightley (1997) 29 HLR 857, there was a dispute as to whether a daughter could succeed to her deceased mother's secure tenancy when, at the time of her death, the mother was a tolerated trespasser (she could not).” ([82])

Thus, Lord Neuberger indicated that the resolution of difficulties under housing legislation should not turn on the answer to technical questions of property law.

As to the interpretation of Part IV, Knowsley, in my judgment, supports the proposition that the provisions of Part IV should in general be given a purposive and practical construction. This emerges most clearly in the speech of Lord Neuberger, with whom the other members of the House, other than Lord Mance on one point, agreed. After setting out the detailed questions that arose on the appeals, Lord Neuberger significantly said this at [68]:

“…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.” (emphasis added)

The final sentence of this paragraph makes it clear that, without departing from normal principles of interpretation, the court should apply a purposive interpretation to Part IV, designed to achieve the result (as far as the rules of statutory interpretation allow) that the law is substantively and procedurally clear and simple. There are many examples of the application of this principle in Lord Neuberger’s speech. For example, Lord Neuberger held that the court could make a proleptic order making but suspending an order for possession and requiring arrears of rent to be paid in a particular way, and in addition providing that the possession order should be discharged if the order was complied with. Lord Neuberger held that such an order could be made and he went on to hold that the order could provide for the possession order to be discharged even if the arrears were not paid off precisely in the way envisaged by the order. In so holding, Lord Neuberger rejected earlier authority of this court to the contrary. Lord Neuberger’s speech thus demonstrates that the proper approach to a question of statutory construction of Part IV will in appropriate cases be a purposive and practical approach in order to achieve the purposes of the legislation.

One of those purposes is the protection of secure residential tenants. Nonetheless, this protection is not to be regarded as limitless. Lord Wilberforce said of a different housing statute in Din (Taj) v Wandsworth London Borough Council [1983] 1 AC 657, at 664:

“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.”

So too, in the context of Part IV of the 1985 Act, we must recognise that the obligations of the housing authority are substantial, and we must give effect to any limitation on them that it appears Parliament has imposed.

We must thus bear in mind the nature of the particular provision which we are interpreting. It is necessary to consider whether it discloses some additional policy objectives, in particular, with respect to the provisions relevant to succession to a secure tenancy, that it may have been an objective of the Part IV that a former tenant against whom a possession order has been made and has become unconditional should not enjoy the same rights as a tenant against whom no possession order is in force.

Mr Richard Drabble QC, for the respondent (“Southwark”), submits that the short answer to the appeal in this case is that Knightley is binding authority on this court for the proposition that the right to apply for the postponement of the order for possession under s 85(2) is not an interest in land capable of being inherited and that accordingly it could not survive Mr Alan Austin's death. The ratio of Knightley is thus central to this appeal, and it is to that case that I now turn.

In Knightley, the daughter of a deceased tolerated trespasser applied to be joined as second defendant in her own right to the proceedings in which a possession order had been made against her mother. Her counsel, Miss Morris, did not suggest that her mother’s tenancy had subsisted at the date of her death. She submitted that the possibility of making an application under s 85 was “an interest in property” that the mother had enjoyed and that the daughter had succeeded to the interest and could make an application for revival under s 85 in her own right. Aldous LJ held that the right to apply for a postponement was not an “interest in land” capable of being inherited, that the right to apply under s 85 was given only to the tenant or the tenant’s spouse or former spouse, and that there was no right given to a person in Miss Knightley’s position to revive the tenancy.

Aldous LJ held:

“Following the reasoning of the House of Lords in Burrows, the tenancy came to an end when the order of 31 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.”

Schiemann and Hirst LJJ agreed. Schiemann LJ added that the only possible way that Miss Knightley could succeed was under s 89 of the 1989 Act but that section only applied where a secure tenant dies.

Mr Luba submits that a person may apply under s 85(2) even after the death of a former tenant. A secure tenancy does not determine on the death of the tenant because it can vest in a successor under s 89. Thus an order for revival after death would be effective. The discretion under s 85(2) can be exercised "at any time before execution of the order". There is no suggestion that the discretion ceases to be available after a tenant’s death. Thus, if a possession order had been made before the date of death but the date for possession had not arrived, there would be no reason why a successor in whom the tenancy vested could not seek the exercise of the discretion under s 85(2) after the death of the secure tenant. Mr Luba also submits that, where there is no successor but there is an extant possession order on the date of death, if the tenancy has vested in the estate of the deceased, there is no reason why the personal representative should not make an application to defer the date for possession. There does not appear to be any difficulty about these examples because there is a secure tenancy on foot at the date of death.

Mr Luba further submits there are good practical reasons why it should be possible to make an application under s 85(2), where the former tenant has died, even after the possession order has taken effect. It may, for instance, be necessary to obtain a stay of a warrant for possession so that his possessions may be removed. The landlord may wish to apply. A spouse, former spouse, cohabitant or former cohabitant may need to make an application under s 85(5) after the secure tenant has died. (I consider s 85(5) below).

Mr Luba submits that the order under s 85(2) could have been made after the death of Mr Alan Austin if the application had been made by him before his death, and that it must follow that an application can be made after his death.

Mr Luba submits that Knightley is distinguishable, and the judge was wrong to conclude that it was binding on him. He points out that there was no application in Knightley to represent the second defendant. Mr Luba submits that accordingly none of the reasons given by Aldous LJ rejecting the argument of Miss Knightley are applicable to the application made by the appellant in the instant case.

In the alternative, Mr Luba submits that Knightley was decided per incuriam because, since s 1 of the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”) it has been possible for causes of action to survive death. The court should have treated the right to apply under s 85(2) as a transmissible personal right. The causes of action which survive include causes of action founded on statutory rights. For example, the right of a tenant not to be charged more than a statutorily controlled rent and to recover any overpayment has been held to be an "asset" passing to the estate of the deceased (Dean v Weisengrund [1955] QB 120). He submits that the right conferred by s 85 is not purely personal.

Mr Drabble's submission is a very simple one. He submits that the effect of Knightley is that the right to apply under s 85 is a personal right and therefore it cannot be exercised by anyone other than Mr Alan Austin. The result is that the position of a secure tenant is very similar to that of a statutory tenant. In John Lovibond and Sons Ltd v Vincent [1929] 1 KB 687, this court held that the right of such a tenant under the Increase of Rent etc Act 1920 was a purely personal right that could not be transmitted by will.

I now turn to my conclusions on Knightley. Subject to s 3 of the Human Rights Act 1998, this court is bound by the ratio in Knightley. I agree with Mr Drabble that it decides that the right to apply under s 85 is a personal right which can only be exercised by the tenant. Thus Aldous LJ held that "The right to apply for a postponement of the order for possession is not an interest in land capable of being inherited." I can leave aside the question whether the right was an interest in land or an interest in personalty. That is not the point being made by Aldous LJ. The emphasis is on the fact that the right was not capable of inheritance, i.e. it was a personal right. Schiemann LJ agreed with Aldous LJ. He confirms this by stating that the only possible way Miss Knightley could succeed was under s 89 of the Act. Hirst LJ agreed with both judgments.

Mr Luba submits that the right to apply under s 85 is transmissible on death on the true interpretation of the 1985 Act, but in the light of Knightley (subject as mentioned above) we are bound to hold otherwise. I do not consider that the point was decided per incuriam since the relevant statutory provisions were before the court and so far as has been shown to us there was no relevant authority which was overlooked. (It would have to be shown that the provision or authority overlooked required the court to reach a different conclusion: see Duke v Reliance Systems Ltd [1998] QB 108, 113.) S 1 of the 1934 Act must be disapplied where a specific Act such as the 1985 Act provides on its true interpretation that a cause of action shall not survive death.

The other point raised by Knightley is whether the right to apply under s 85 is exclusively vested in the tenant or a person to whom s 85(5) applies. Aldous LJ stated that “the right to apply under s 85 is a right given to the tenant and in subsection (5) to the tenant's spouse or former spouse… there is no right given to a person in Miss Knightley's position to apply to revive a tenancy.”

Mr Luba submits that s 85(2) does not restrict the parties who may apply under that section. In my judgment, an application under this section cannot, in the absence of express statutory provision, be made except by a party to the possession proceedings or (where the 1985 Act permits this) a person deriving title through a party.

In my judgment, on a fair reading of this passage, Aldous LJ was not laying down a comprehensive list of the persons who could apply under s 85. Firstly, he does not refer to the landlord but he had just referred to Burrows, in which Lord Browne-Wilkinson made it clear (at 1457E) that either party could apply for an order under s 85(2), not just the tenant. Secondly, although we did not have full argument on this point, the apparent purpose of ss (5) (to which Aldous LJ refers) is not to create a right to apply but to extend the “home rights” and other rights conferred by Part IV of the Family Law Act 1996 to the persons there mentioned.

In summary, in my judgment, subject to the possible application of s 3 of the Human Rights Act 1998, Knightley binds us to hold that the former tenant’s right to apply under s 85(5) terminates on the former tenant’s death.

Mr Luba’s alternative argument is that the court should interpret s 85(2) in a manner which is compatible with Mr Alan Austin's rights under art 1 (“A1P1”) of the First Protocol to the European Convention on Human Rights. This article provides:

“Article 1
Protection 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.”

I accept the submission of Mr Luba that the expression "possessions" is an autonomous expression to be interpreted in accordance with the jurisprudence of the European Court of Human Rights (“the Strasbourg court"): see, for example, Teteriny v Russia App No 1193/03 June 20 1995 at [45]. In that case, the applicants had the right, pursuant to an order of the court made against the local authority, to receive a voucher entitling them to occupy a flat having certain characteristics. The Strasbourg court held that this was a “possession” for the purposes of A1P1.

However, Mr Luba needs to go further than show that the right was a “possession”. Mr Luba must also establish that the former tenant’s right to apply under s 85 was a possession even after his death. Only in that way can he show that there was an interference with a right.

Mr Drabble submits the A1P1 does not create any rights and, as there is no right to apply under s 85 after the former tenant’s death, A1P1 is not engaged. He relies on Kopecky v Slovakia (2005) 41 EHRR 944, cited with approval by Lord Neuberger in R(RJM) v Secretary for Work and Pensions [2008] UKHL 63, at [25]:

“[25] In Kopecky v Slovakia (2005) 41 EHRR 944, the ECtHR said at para 35(b) that A1P1 “does not guarantee the right to acquire property”, so that a claim could not be brought within A1P1 unless the Claimant owned, or at least enjoyed a legitimate expectation to, property. The court then explained at para 49 that there could be no legitimate expectation unless there was a “currently enforceable claim that was sufficiently established”.

Reliance is also placed on the judgment of the court in Kay v Lambeth LBC [2006] QB 352, referring to the speech of Lord Hope in Wilson v First County Trust Ltd [2004] 1 AC 816. Lord Hope held:

“106 Article 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.”

So the placing of limitations on a right by domestic law does not result in an interference with, or deprivation of, a right for the purposes of A1P1. Accordingly, I agree with Mr Drabble’s submission. As there is no right under national law to make an application under s 85 after the death of a former tenant, A1P1 is not engaged.

Although Parliament may not have intended to cause hardship where a tolerated trespasser has satisfied the obligations under his former tenancy for many years, it can be inferred, on the basis of Knightley, that Parliament did not intend there to be rights of succession where the former tenant was at the date of his death a mere tolerated trespasser. It would appear to have been Parliament’s intention that a tolerated trespasser should not have the same rights of succession as a tenant who has complied with his obligations under his tenancy agreement. Since A1P1 is not engaged in this case, the court never arrives at the stage of asking whether there is a reasonable relationship of proportionality between that aim and the means employed (total removal of the right) in the case where a Lazarus order would have been made.

The parties did not rely on article 14 of the Convention (prohibition of discrimination), and it is unnecessary for me to consider that provision. Likewise in the circumstances, the question of the application of s 3 of the Human Rights Act 1998 does not arise.

The question whether the judge was right to decline to exercise his discretion under CPR 19.8 in favour of Mr Barry Austin does not arise.

For the reasons given above, I consider that this appeal should be dismissed.

Brent Borough Council v Knightley [1997] 29 HLR 857 is in my view binding authority for the proposition that, once a secure tenancy has come to an end, the right to apply to the court to revive that tenancy accorded to a “tolerated trespasser” cannot be exercised by a family member after the death of the tolerated trespasser. It is a question whether this authority also binds us to hold that the right to apply to revive the tenancy does not survive for the benefit of the tolerated trespasser’s estate. I consider that it does because the daughter (Miss Knightley) claimed both that the right devolved to her as daughter and that the right could be maintained by her in her own name. Aldous LJ, with whom the other members of the court agreed, said in terms that the right was “incapable of being transmitted”. That conclusion applies to transmission by will or on intestacy just as much as any other transmission e.g. by assignment between living persons.

Even if that has not been expressly decided by Knightley and the matter were at large for us, the correct view must be that the right is not exercisable by a deceased’s personal representatives. Parliament plainly intended that the person, who would otherwise be entitled to a secure tenancy if it had been revived, should not be able to apply to revive it in his or her own name. To hold that the deceased’s estate can apply to revive it for the purpose of enabling that person to obtain a secure tenancy would be to circumvent, if not to flout, that intention by means of a legal device. I would therefore agree with what I believe Aldous LJ said namely that the right is not capable of being transmitted either to Mr Barry Austin directly or to Mr Alan Austin’s estate.

Dean v Wiesengrund [1955] 2 All E.R 432 is readily distinguishable. It dealt with the right of a deceased tenant’s estate to recover over-payment of rent. That right could not and did not lapse with the death of the tenant and thus enrich the landlord. A secure tenancy is very different; there is statutory provision for it to vest in an appropriate relative and no action by the tenant’s estate is necessary for that. Once the secure tenancy has come to an end, it cannot vest in anyone. The right to revive the tenancy after it has come to an end can only be exercised by the tenant himself for the reasons given above. Since it cannot vest in an appropriate relative, there is simply no need and no warrant for the estate to seek to revive it.

It is true that what I have referred to as a legal device can have its uses to remedy perceived defects in the common law. The House of Lords used it to ameliorate the problems of privity of contract in Beswick v Beswick [1966] AC 58. To use it to remedy perceived defects in a statute is a much more problematic matter and not to be, in any way, encouraged.

I must confess that I have had some difficulty in following Mr Luba QC’s argument based on Article 1 of the First Protocol to the extent that he seeks to improve his client’s position. He accepts that Article 1 does not create rights which domestic law does not confer. If the right to apply to revive a secure tenancy, as a matter of domestic law, is not transmissible on the death of the former secure tenant (or tolerated trespasser as he has now become) the right lapses once the trespasser dies. He has not been deprived of any right because he had the right while he was alive. His estate never had any such right. Pye v Graham [2002] 3 WLR 221 (HL), on which Mr Luba sought to place some reliance was a case where the landowner had been deprived of his possession of his estate by reason of the law of adverse possession. That was a true deprivation but in the present case no one has been deprived of anything.

I therefore agree with my Lady that this appeal must be dismissed.

I agree that the appeal should be dismissed for the reasons given by Arden LJ.