Pemberton v Southwark LBC [2000]

Tolerated trespassers are able to bring an action in nuisance against the owner of the property in which they are residing.

A secure tenant fell into rent arrears, and a suspended possession order was made against her. She breached this order, and became a tolerated trespasser. She later began proceedings against the council, alleging that her flat was infested with cockroaches and that this was due to the infestations in common parts of the building that were owned by the council. The council claimed that she did not have a cause of action because she was not a tenant. It contended that she did not have a sufficient interest in the premises to support an action in nuisance.

On appeal:
HELD: The Court of Appeal held that although tolerated trespassers cannot require landlords to carry out repairs or bring proceedings under the Defective Premises Act 1972, and landlords cannot evict them for breach of covenants in the former tenancy agreement, the former tenant did have sufficient interest in the premises to bring an action in nuisance.
The policy considerations that had led to the special status of tolerated trespassers did not justify depriving them of all rights and remedies in trespass and nuisance. Possession or occupation by tolerated trespassers may be precarious, but it is not wrongful. It constitutes exclusive possession.
Although the council was not under any obligation to repair the tolerated trespasser’s flat, there was no reason why it should not be obliged not to create a nuisance.

Citation: Pemberton v Southwark LBC [2000] 1 WLR 1672