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Family Law – Transfer of tenancy

1st May 2005

By : Janna Lawley

Family Law Act 1996

Somewhat unusually for a family practitioner I recently acted for a local authority in an application by a cohabitee for a transfer of tenancy pursuant to Schedule 7 of the Family Law Act 1996. The circumstances of the case were as follows: the tenancy was granted in the sole name of the Respondent over 20 years ago and she lived in the property with the Applicant and their two children. The Respondent fell into arrears with her rent and around 4 years ago the Local Authority obtained a possession order which was suspended upon the Respondent paying her rent plus a small amount per week towards the arrears. She subsequently fell into arrears again last year and the local authority obtained a warrant for possession. When they attempted to serve the warrant they discovered that the Respondent had in fact left the property earlier in the year. The Applicant then applied to suspend the warrant and have the tenancy transferred into his sole name. The Respondent did not oppose the application, but the local authority (although not a party, having the right to be heard) did.

The interesting point of the case was this: as the local authority had obtained an order for possession suspended upon the payment of rent arrears and the Respondent had breached the terms of suspension this bought an end to the Respondent’s secure tenancy under the Housing Act 1985 and she was a ‘tolerated trespasser’. She had done nothing to revive the tenancy since the order for possession and consequently there was no tenancy capable of being transferred at the date of the Applicant’s application. The relevant case law on this point is helpfully summarised in Burrows v Brent London Borough Council [1996] 1 WLR 1448, recently applied in Hawkins & ORS v Newham London Borough Council [2005] EWCA Civ 451. As a result Counsel for the Applicant conceded that he could not proceed, and the Applicant withdrew his application. It is therefore a helpful reminder to those acting for cohabitees to check if there are any relevant possession orders in place before issuing applications for transfer of tenancy.

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