Court of Appeal
Published July 3, 2008
Merton London Borough Council v Jones

A tolerated trespasser was liable to pay mesne profits for overstaying in his former dwelling only up to the time he had decided to give up possession and removed his belongings, even if he had retained the keys and told the landlord of his decision much later.

The Court of Appeal (Lady Justice Arden, Lord Justicde Wall and Lord Justice Wilson) so stated on June 16, 2008, allowing the appeal of the tenant, Anthony Jones, from the judgment of Judge Ellis, dated December 21, 2006, at Croydon County Court, ordering him to pay Merton London Borough Council, £3,200 by way of mesne profits referable to the flat at 24 Pains Close, Mitcham, from October 3, 2005, to September 25, 2006, for overstaying in the dwelling without paying mesne profits for part of overstaying period.

LORD JUSTICE WILSON said that it would indeed be odd if Mr Jones were liable for mesne profits in respect of a period after he had given possession in belated compliance with the order made against him.

But more significant, surely, were the terms of section 85(3) of the Housing Act 1985, which, 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”.

Mr Jones had relinquished his intention to possess the flat. In the end it was not possible to attach any significance to his retention of the keys.

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