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Don’t try this at home


Gibson v Douglas & Anor [2016] EWCA Civ 1266

In which the court of appeal almost but not quite consider the notice requirements for licencees excluded from the Protection from Eviction Act 1977

Mr G had been living at Mrs D’s property, which she also occupied since 2008 or 2009. He claimed housing benefit for ‘rent’ for what appears to have been a lodger arrangement. It appears (and it has to be said evidence on much of this is not entirely clear) that something of a relationship grew up between Mr G and Mrs D. In 2012, Mrs D was hospitalised and it became clear she had vascular dementia or Alzheimers.

Mrs D’s son was called to the hospital as next of kin, because Mrs D

was beginning to make disclosures, alleged disclosures I hasten to add, about the way that Mr Gibson had been behaving towards her, including allegations of violence, and she did not want to go back to the property whilst Mr Gibson continued to live there, or at least that is what she is saying at the time.

Mr D and his wife first stayed overnight with Mr G in the property, amicably, then visited his mother the next day, when he heard

that as she was being discharged Mrs Douglas did not want to go back to the property whilst Mr Gibson was there. This represented something of a sea change in his understanding for [Mr] Douglas, and he contacted the police concerned in her case when told about some of the revelations that were emerging.

The police attended the property. Mr D was there and his wife a little distance away.

When the police attended, and again this is not disputed, Mrs Douglas was a little distance away from the house. There was something of a fracas between the police and Mr Gibson, and, Mr Douglas may have not particularly helped the situation by being there himself and moving into the property immediately, purportedly to assist his mother. As a result of the exchange with the police, Mr. Gibson was forcibly ejected from the property and ended up being taken away from the situation in a police car and thereafter until his relationship resumed with Mrs Douglas was living in other rented accommodation …

Mr G brought a claim against Mrs D and Mr D for unlawful eviction and damages for possessions ‘appropriated or destroyed or in some other way disposed of’. As against Mrs D, the claim was compromised for £5, but pursued against Mr D.

At first instance, the claim was dismissed for the following reasons:

… this was a particularly close relationship, albeit maybe not one in which they were physically sharing a bed or as close as a husband and wife might be, but it was a sufficiently close relationship to take it well outside the context of even that of a lodger. I have no doubt at all that there was no tenancy created here, no assured short-hold tenancy so far as to bring this within the provisions of the Housing Act, and I go a stage further to say that even without hearing evidence from Mr Douglas, on the claimant’s account the irresistible conclusion is that Mr Gibson was an excluded licensee, and when he was faced with a situation where Mrs Douglas was communicating through authorities, bearing in mind that she then had difficult capacity problems, that she wanted him out of the property, his right to stay there was extremely limited and those who acted upon that particular wish acted entirely properly.

I am not satisfied that [Mr] Douglas’ role was anything more than simply a conduit for his mother’s wishes. I do not see him playing any part at all in this eviction so as to entitle the claimant to damages against him, but I bear in mind that this is a claim that has been brought by the claimant. He is the one who must prove his case, and because this is a half time submission I have to look at the evidence, and ask myself whether or not it is capable of proving the assertions that he is making. I have come unhesitatingly to the conclusion that it is not.
Even if I felt that the claimant had some validity (which I do not) in pursuing his stepson-in-law for an unlawful eviction claim, there is a woeful lack of evidence supporting any of the special damages claimed in relation to these missing items, and indeed any other damage that might attach to a claim of this nature, and in view of the background I would have been disinclined to regard this as a case where there should have been any compensatory award and any exemplary damages award in any event.

Mr G sought to appeal out of time. He was given permission limited to the question whether a licensee may lawfully be evicted without notice. If the common law did permit this, was it compatible with article 8?

Mr G and Mr D were both represented pro bono by counsel via the Bar pro bono unit.

But alas, the issue of ‘reasonable notice’ requirements for lodgers or excluded licencees did not need to arise.

The court of appeal found that on the evidence before the first instance court, Mr D had not effected the eviction, so the claim against him must fail. The court did go on to offer some comments and observations on notice and excluded licences.

It is clear from Judge Wood’s judgment that, although both were present when Mr Gibson was evicted, neither Mr Douglas, nor for that matter Mrs Douglas, took any active role in what happened. As Judge Wood put it, “the physical removal was effected by the police”, with Mr Douglas “being there” and Mrs Douglas “being nearby” though “a little distance away from the house.” There was nothing in the evidence, and there is nothing in the judgment, to indicate that Mr Douglas did anything at the property while Mr Gibson was being evicted capable of making him a joint tortfeasor, whether with Mrs Douglas or with the police. Nor, on the evidence or in light of the judgment, did his acting, in Judge Wood’s phrase, as a “conduit for his mother’s wishes”, make him a joint tortfeasor. I agree with Mr Fieldsend that on this short ground the appeal must be dismissed.

One of Mr Brayley’s complaints is that, while Judge Wood, as he submits, correctly summarised the law when he said that “a licence can be terminated on the giving of reasonable notice to leave”, he failed to apply the law properly. I am not sure this is correct. As I read his judgment, Judge Wood decided the case on the narrow point that Mr Douglas was not sufficiently involved in what happened to be exposed to whatever liability there might otherwise have been. On that basis there was no need for Judge Wood to come to any conclusion as to whether the eviction was unlawful, either for want of notice or because Mr Gibson was given inadequate time to pack up and go.

Leaving on one side the question of whether notice, written or oral, is required to terminate a licence (a question which, in the circumstances, I need not go into), it is clear law that, where the relevant period has not been specified by the licence itself, a licensee is entitled, following revocation of the licence, to whatever in all the circumstances is a reasonable time to remove himself and his possessions: see Minister of Health v Bellotti [1944] KB 298. With all respect to counsel who suggested otherwise, it is impossible to define the principle with any greater precision and undesirable that we attempt to do so.

I add these observations. At one end of the spectrum, the unwanted visitor who presents himself at the front door, is asked in but then told to go, must leave immediately, taking the quickest route back to the highway and not delaying; so his period of grace may be measured in minutes: see Robson v Hallett [1967] 2 QB 939. On the other hand, a period measured in years may in some cases be appropriate: see, for example, Parker v Parker [2003] EWHC 1846 (Ch), where the Earl of Macclesfield was held entitled to two years to leave the ancestral home, Shirburn Castle, which he had been occupying as a licensee for some ten years. There was some discussion before us as to what the appropriate period might be in a case such as this. It depends on the circumstances. That said, I very much doubt that it would be a period measured in minutes, hours or even days. On the other hand, I can well imagine that it might typically be a period measured in weeks rather than months or years. Further than that I am not prepared to go.

While this is strictly obiter, these last paragraphs do highlight that a ‘reasonable period’ of notice for an excluded licencee is dependant on the circumstances, and can’t simply be said to be a day or two. And eviction without reasonable notice may still found a claim.

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.


  1. Ian


    Thanks for this very helpful resource.

    If a tenant moves in with a Landlord as a lodger, paid him a deposit of say £720, I understand he would not need to protect it. However, what if this changes, say Landlord does not stay at property or another tenant moves in.

    Are you aware of any case law or legislation where a tenant could argue that the lodging agreement should be treated as a Shorthold Tenancy?

    Would it need a higher Court or judicial review to decide lodger agreement is AST or can County Court decide that?


    • Giles Peaker

      That is a big question, which I am not going to answer because it would take far too long, save to say that it would be a county court issue.

  2. Ian

    Thanks for clarifying that it is a County Court Issue.

    I gathered that evidence would have to be provided to satisfy the Court to set aside the agreements, then perhaps replace them with statutory tenancies, but it gets more complicated because there are several tenants, so is it one SPT for all or individual ones etc etc.

    Could you just let me know if you are aware of any case law covering such a case?

    Have you had any similar cases yourself?

    I read recently about some agents who were issuing licences instead of Shorthold Tenancies, which made me think about intnent, the agents clearly intended to avoid the legislation.


  3. Ian

    Hi Giles

    I have another question, hopefully easier to answer and more relevant to above post.

    If a tenant panics and abandons their property, in breach of their tenancy notice and so Landlord charges them for the required notice.

    Are they entitled to re-enter the property and carry on their tenancy or at least occupy it until S21 served?

    If a Landlord refused them access to the property would it be considered forced eviction?

    • Giles Peaker

      Yes it certainly would. There is no such thing as ‘abandonment’ in law currently. Either both parties’ actions are such as to amount to a surrender in law, or the tenancy continues. If a tenant hasn’t given notice, and neither has the landlord, the tenancy continues.

      (And of course they can continue to occupy after s .21 served and expired. A s.21 notice doesn’t end a tenancy either.)

  4. Ian

    Thanks for that,

    Can you please clarify what “both parties’ actions are such to amount to surrender in law ” means in types of event.

    If Tenant wrote an email saying they wanted to leave early, left keys in property with another tenant would that be a surrender?

    If Landlord refuses to give back keys or let tenant in, will that avoid need for S21,

    I took it to be a form of Forced Eviction if they did that.

    Would a tenant be within their right to get a locksmith to gain entry and give new keys to other tenant, then bill the Landlord for locksmith?

    • Giles Peaker

      On surrender by operation of law, see It has to be both parties acting in such a way that is unequivocally incompatible with the tenancy continuing.

      The facts you present don’t amount to a surrender, I think. T did not return keys to landlord. The email is neither here nor there by itself. T could have changed their mind and it isn’t formal notice. Did L continue to charge rent? If so, very unlikely to be a surrender.

      In the circumstances you set, the landlord could be facing unlawful eviction case, unless there was more to it.

  5. Roger the Lodger

    Here’s one:

    Dramatis personae: A live-in landlord and his excluded occupant lodger. A contract exists between them with a fixed term and rent paid monthly.

    Act I: After the fixed term has concluded, the lodger pays rent and gives notice in writing as set out in the contract. The landlord asks the tenant to leave before that notice period has expired, citing ‘reasonable notice’ (a ‘counter-notice’, if you will). Can ‘reasonable notice’ reasonably be less than the contractual notice period?


    • Giles Peaker

      Depends if the contract had a landlord’s notice period.

  6. carla littler

    Thank you for the article. A question if i may, an excluded tenancy exists [lodger has specified bedroom for exclusive use but shares kitchen, bathroom and living accommodation] that states the notice period to be given by either landlord or lodger, the landlord peaceably evicts the lodger without giving this specified notice and in doing so could be said to have unlawfully evicted the lodger but not illegally as no protection exists under the PFEA 77. It would seem to me that a claim for financial compensation could be made by the lodger however, would there be an offence committed by the landlord that the Local Authority would be able to pursue, particularly if the Landlord declined to re-instate the lodger for the remainder of the notice period?

    • Giles Peaker

      There may be a civil claim for breach of contractual notice requirements. Nothing for LA to pursue.


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