Hammersmith and Fulham LBC v Jastrzebska [2001]

A couple were not allowed to succeed to the secure tenancy of the relation with whom they had been living, which meant that they were trespassing on the council’s property.

Following the death of a secure tenant of Hammersmith LBC, the council sought possession of the flat from a cousin of the tenant (and her husband) who had been living with the tenant for the previous two years.
The cousin and her husband had claimed to have succeeded to the tenancy, but the council had decided that they were not eligible because it did not believed that they have been living in the flat for more than a year before the tenant’s death. This was due to a housing benefit application by the tenant, on which he had said that no one else resided at the property.
The council then sent the couple a standard form letter indicating that they were in occupation without any tenancy or licence and without the council's consent. It said that they were liable to pay rent and may be able to obtain housing benefit for this. Two days after this, the council purported to terminate the secure tenancy enjoyed by the deceased tenant, by sending a notice to quit to his representatives.

The couple tried to persuade the council to persuade its mind in respect of allowing them to succeed to the secure tenancy, but the council sought an order for possession. The couple counter-claimed that the council had accepted them as tenants due to accepting rent from them, but the council argued that the payments had not been rent but had been mesne profits.
The judge at first instance agreed with the couple, but in the High Court the judge allowed the appeal and made the order for possession.

On appeal:
HELD: The Court of Appeal did not allow permission to appeal, as the correspondence made it clear that, by accepting payments, the council had not granted a tenancy or licence and had not given the couple consent to occupy the property. The couple were therefore trespassers and the possession order remained.

Citation: Hammersmith and Fulham LBC v Jastrzebska [2001] EWCA Civ 431