West Law Report


Posted in Westlaw Reports by mrkooenglish on July 2, 2008

Last Updated: 5:27PM BST 02/07/2008
Court of Appeal (Civil Division) Arden, Wall, Wilson LJJ June 16, 2008
Intention – Mesne profits – Notification – Possession – Secure tenancies – Tolerated trespass – Liability of tolerated trespasser to pay mesne profits after giving up possession – Date of giving up possession – Pt IV Housing Act 1985 – s. 85(3) Housing Act 1985


The appellant (J) appealed against a decision that he was liable to pay mesne profits as a tolerated trespasser of his local authority flat even after he had given up possession. J had been a secure tenant of the respondent local authority. The local authority had obtained a possession order based on arrears of rent and J had become a tolerated trespasser. J had been shot and wounded at the flat by an unknown assailant and had decided not to return to it. He so informed the local authority and sought to be rehoused by another local authority. J caused a friend to visit the flat and remove J’s possessions. The local authority claimed arrears of rent. The judge held erroneously that J’s liability to pay mesne profits as a tolerated trespasser continued until the local authority accepted that the tenancy had ended. J submitted that his liability for mesne profits ended when he gave up possession. The local authority submitted that a tolerated trespasser’s liability for mesne profits continued until his former landlord was notified that he had given up possession.


Whether a tolerated trespasser was liable to his former landlord for mesne profits after he had given up possession.

HELD (appeal allowed)

(1) A former tenant who wrongfully remained in possession after the end of an ordinary tenancy, not one that was secure under the Housing Act 1985 Pt IV, ceased to be liable for mesne profits when he gave up possession, irrespective of notice, Southport Tramways Co v Gandy [1897] 2 QB 66 considered. There was no indication that the law treated the extent of the liability of the tolerated trespasser to pay mesne profits differently from that of other former tenants who had wrongfully remained in possession. Section 85(3) of the Act, 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 and, whether or not occupation was synonymous with possession, it was impossible to read into it any element of notification. Furthermore, a tolerated trespasser lost his distinctive status upon giving up possession, irrespective of notification, Dunn v Bradford MDC (2002) EWCA Civ 1137, [2003] HLR 15 applied. The submission that the liability of a tolerated trespasser for mesne profits should continue until his giving not only of possession but also of notification was clearly invalid.

(2) Until he removed his possessions from the flat J remained in factual possession of it. He intended to give up possession of it and did give up possession of it when his friend removed his personal possessions from it, JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 applied. The fact that he retained the keys to the flat was in the circumstances not significant, John Laing Construction Ltd v Amber Pass Ltd [2005] L & TR 12 Ch D approved.

Robert Latham (instructed by Hammersmith & Fulham Community Law Centre) for the appellant. Lloyd Sefton-Smith (instructed by in-house solicitor) for the respondents.


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