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09/04/2008

Non-secure tenants

Just a quick comment on Westminster CC v Boraliu [2008] EWCA Civ 1339, which is not on Bailii yet. I was alerted by Housing View at Sweet & Maxwell.

This was Court of Appeal decision on the effect of Schedule 1, Housing Act 1985 on exclusions from otherwise secure tenancies.

The case concerned paragraph 4, which provides that a tenancy is not secure if it was granted in pursuance of any function under the homelessness provisions of the Housing Act 1996, and also paragraph 6, which provides that a tenancy is not secure if the dwelling-house has been leased to a landlord with vacant possession for use as temporary accommodation and the lease is subject to a term that the lessor of the property – who cannot be a body capable of granting secure tenancies – can obtain vacant possession on expiry of a specified period or when required.

The Appellant – who had won the appeal to a CJ – had been placed in temporary accommodation in a flat that the local authority had leased from a Housing Association. The tenancy agreement said it was non-secure tenancy under para 6. The appellant refused alternative temporary accommodation and duty was discharged. The LA brought possession proceedings under para 4.

The appellant contended that the paragraphs were mutually exclusive, so that para 4 (the homeless exclusion) didn’t apply when a sub-leased property was used. In this case para 6 didn’t apply as the LA could grant secure tenancies.

The Court of Appeal held Paragraphs 4 and 6 of Sch.1, 1985 Act, are not mutually exclusive. Each exclusion had a clear purpose, so that its operation was not restricted by the potential applicability of another paragraph.

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.

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