04/03/2008

Accidentally Secure

And so to the last of the marathon of housing case notes I’ve knocked out over the last few days….

This was reported in the Law Gazette, Mansfield District Council v Langridge (2008) CA (Civ Div), (free access at the time of writing) and is not yet on Bailii. This is a pity, because I really want to see the detailed judgment on this one, for reasons that will become clear.

In short, possession proceedings were brought against a secure tenant (on what ground is not clear), but the tenant was hospitalised before the hearing, entrusting the keys to the Council. On his release from hospital the Council refused to give the keys back (!!). the tenant obtained an order that he be allowed to return. The Council, to stop his return prior to the hearing of the possession claim, offered a flat to the tenant on the basis of a detailed licence stating that he would not become a secure tenant of the flat and that the tenancy of the flat would cease on determination of the possession claim against the original property. The Council won a possession order on the property and served notice on the tenant for the flat. The tenant defended on the basis that he was the secure tenant. The defence and first appeal were dismissed, the Council arguing that for the purposes of s.79(3) Housing Act 1985, the flat was not a separate dwelling and that the tenant’s right to occupy had ended, pursuant to the licence when the possession proceedings were completed.

At the Court of Appeal, the Council argued the same, adding that the licence agreement contained the express intentions of the parties; the licence did not fall under s.79(3) as it did not have the characteristics of a tenancy, being a temporary licence.

The Court of Appeal held:

  1. the law supervenes over the intention of the parties
  2. The licence agreement did fall within s.79(3) as it was a dwelling house, with exclusive possession and, because excluded from the original property, was entitled to treat it as his only home.
  3. from the agreement, the structure and location of the flat, it was clearly a separate dwelling for s.79(3) Tyler v Kensington and Chelsea RLBC [1991] 23 HLR 380 CA (Civ Div) and Andrews v Brewer [1998] 30 HLR 203 CA (Civ Div) distinguished.

So the Appellant was a secure tenant.

I really, really want to see the full judgment of this. Because I can’t see why it wouldn’t apply to temporary accommodation provided under Part VII. [Edit 5/3/08 – it doesn’t, and I was not thinking straight. See below]

Here are s.79 – 81 Housing Act 1985

Secure tenancies.79.

(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.

(2) Subsection (1) has effect subject to

(a) the exceptions in Schedule 1 (tenancies which are not secure tenancies),

(b) sections 89(3) and (4) and 90(3) and (4)(tenancies ceasing to be secure after death of tenant), and

(c) sections 91(2) and 93(2)(tenancies ceasing to be secure in consequence of assignment of subletting).

(3) The provisions of this Part apply in relation to a licence to occupy a dwelling-house (whether or not granted for a consideration) as they apply in relation to a tenancy.

(4) Subsection (3) does not apply to a licence granted as a temporary expedient to a person who entered the dwelling-house or any other land as a trespasser (whether or not, before the grant of that licence, another licence to occupy that or another dwelling-house had been granted to him).

80. The landlord condition.

(1) The landlord condition is that the interest of the landlord belongs to one of the following authorities or bodies—

 a local authority,

a new town corporation,

[a housing action trust]

an urban development corporation,

81. The tenant condition.

The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.

And here are the Schedule 1 exceptions

1. A tenancy is not a secure tenancy if it is a long tenancy.

1A. A tenancy is not a secure tenancy if it is an introductory tenancy or a tenancy which has ceased to be an introductory tenancy

(a) by virtue of section 133(3) of the Housing Act 1996 (disposal on death to non-qualifying person), or

(b) by virtue of the tenant, or in the case of a joint tenancy every tenant, ceasing to occupy the dwelling-house as his only or principal home.]

2 & 3 [Employment related accommodation not relevant here]

So, given the apparently expansive view of s.79 taken by the Court of Appeal here, how would a licence for temporary accommodation after homeless application or post accepting duty, and satisfying the conditions of being a self-contained dwelling, with exclusive possession, tenant’s only home and a local authority landlord, not be a secure tenancy? [Edit 5/3/08. Of course it wouldn’t, as Simon pointed out in the comments, below. It would fall under Schedule 1(4) Housing Act 1985. I can only plead being very tired in mitigation.]

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. Simon

    Would the situation you described of, ‘a licence for temporary accommodation after homeless application or post accepting duty’ not be covered by by Schedule 1(4) of the Housing Act 1985??

    “4. Accommodation for homeless persons
    A tenancy granted in pursuance of any function under Part VII of the Housing Act 1996 (homelessness) is not a secure tenancy unless the local housing authority concerned have notified the tenant that the tenancy is to be regarded as a secure tenancy”

    If a tenancy granted in pursuance of such provisions can’t be regarded as secure, then I’m sure that a licence in pursuance of the same provisions similarly couldn’t be regarded as secure…

    Reply
  2. contact

    Simon, you are quite right, as even a moment’s reflection would have told me. I had, in what can only be a crazed moment of tiredness, thought it might avoid that section. But of course it wouldn’t. Post edited accordingly.

    Reply
  3. J

    Mansfield is now on Lawtel. Let me know if you need a copy.

    Reply

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.