T can become a tolerated trespasser when L gets a possession order, but T is then allowed to stay at the property. Typically, this will be on the basis that T (now a tolerated trespasser) continues to pay the current rent, plus an additional sum towards rent arrears. The actual status of T will depend upon the wording used in the possession order, but in Harlow [2006] it was held that a typical possession order resulted in the secure tenancy coming to an end on the date specified in the order, with T therefore remaining in the premises merely as a tolerated trespasser (and not as a T). Since that decision, the wording of suspended possession orders has been amended, but there are numerous occupiers who have previously had such orders made against them, who are still tolerated trespassers (although often, they will have no idea that they are no longer Ts). The practical importance of this is that the occupier will no longer have a right to buy, succession rights, right to exchange, or contractual rights to repair and maintenance of the property. Thus, there has been considerable pressure to amend to law, and it seems clear that the government will do this through statutory means.

In the meantime, one circuit judge has manged to find a way around tolerated trespasser status on the basis that the CA in Harlow [2006] had ignored Payne [1958] which said that the payment of rent arrears resulted in the implied automatic discharge of the suspended possession order (ie no longer a tolerated trespasser). That rather tenuous authority might be a way for other courts to tackle this issue, pending the forthcoming legislation. See Helena Housing v Mower (Liverpool County Court, 28 November 2007, unreported) noted in [2008] NLJ 446. © Practical Lawyer