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Secure tenancies

This page contains material on:
  • Business tenancies to residential tenancies - secure?
  • Misrepresentation inducing a tenancy
  • Only or principal home
  • Reasonableness
  • Succession
  • Suitable alternative accommodation
  • Tenancies at will not secure
  • Variation of terms

Business tenancy to residential

Tomkins v Basildon DC
[2002] EWCA Civ 876

Property initially let under a business tenancy and later used for residential purposes was not protected by the Housing Act 1985. There was no surrender of the original business tenancy and re-grant of a residential tenancy. L had simply not enforced the user covenant in the lease.


Misrepresentation

Ground 5 of Schedule 2 to the Housing Act 1985 provides the following ground for possession:
    "The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by

    (a) the tenant, or
    (b) a person acting at the tenant's instigation".

Evidence of inducement

Waltham Forest London Borough Council v Roberts
[2004] EWCA Civ 940.

This was a claim for possession of a secure tenancy made under Grounds 1 (rent) and 5 (misrepresentation inducing grant of a tenancy) of Schedule 2 to the Housing Act 1985. In rejecting the landlords claim for possession on Ground 5 the judge had been strongly influenced by the fact that no-one had been expressly called to state that the tenancy had been granted as a result of the misstatement. The CA held that this is the wrong approach. The inducement could be inferred from the circumstances:
    "The Act does not define 'induced'. The judge was strongly influenced by the absence of evidence from the actual decision maker and rejected the evidence which was before him about the Authority's policy in responding to housing applications. In so far as he is to be taken to have concluded that without evidence from the actual decision maker, the burden of proof could not be discharged, he was plainly wrong. No basis for the existence of such a strict evidential requirement has been made out. Nor could it be, for there are none save that it is to be noted that in certain circumstances, to which I shall refer later, a presumption of inducement can arise. The Authority called its rehousing manager, Mr Bourne. His evidence, which was uncontradicted, was that in accordance with its policy, the Authority would have wanted to investigate the true position. As a result, he stated it was unlikely that Mrs Roberts would have been granted a tenancy of this particular accommodation, at the date it was granted, had the Authority known of her joint ownership of 143 Westdown Road. Her ownership would have generated inquiries into who was living at the property, the type of security the owners had and the amount of equity in the property." (Newman J, para 37).

    "In considering whether a misstatement has induced the misrepresentee to act to his detriment, it is helpful to start by considering the materiality of the misstatement. ... In connection with a housing application the applicant's ownership of a property is obviously material. Further, given that in this instance the purpose of making the false statement was, as the Recorder found, deliberate and designed to avoid the inquiries and investigations to which the disclosure of the truth would have been likely to give rise, there was ample evidence upon which the court could have concluded that the Authority was induced. A false statement on a material matter is likely to have induced the misrepresentee. . Once materiality has been established it is a "fair inference" of fact that the misrepresentee has been influenced by the statement:

      'I think that if it is proved that the defendants with a view to induce the plaintiff to enter into a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement' (Lord Blackburn in Smith v Chadwick (1884) 9 App Cas 187 1961)".

    (Newman J, para 43).
Escaping effect of Ground 5 by assignment - relationship to rescission

London Borough of Islington v Uckac
[2006] EWCA Civ 340

In this case the tenancy was granted to the second defendant and later assigned to the first defendant. The case proceeded on assumed facts, namely that the tenancy had been obtained by way of a fraudulent representation. However, it was held that it is not possible too rely upon Ground 5 against an assignee of the tenancy, even where that person was party to the original fraud. That conclusion followed from the use of the present tense in the Ground. Further, it is not possible to obtain rescission of a secure tenancy - the right to rescind has been ousted by Parliament by the inclusion of Ground 5. Dyson LJ:
    "The structure of section 82 and 84 of the 1985 Act is clear. Section 82 provides what the landlord can do in order to obtain possession of a dwelling-house which is let under a secure tenancy. He can only bring such a tenancy to an end by obtaining an order for possession. This means that he cannot bring it to an end in any other way, for example, by obtaining an order for rescission" (para 27).
The decision in the case did lead to the "unpalatable result" that, as a result of the assignment the second defendant was "in a stronger legal position than her husband was and .. she is occupying a flat which should be available for the occupation of a homeless person making an honest application to the council for accommodation. It is a matter Parliament to decide whether it wants to do anything to remedy the situation. The 1985 Act prevents the courts from doing anything about it". (Mummerly LJ at paras 47 and 48).

Only or Principal Home

Motivation for retaining the property - burden of proof

Southwark LBC v Ibidun
[2017] EWHC 2775 (QB)

Summary

When considering whether a secure tenant occupies a property as their only or principal home, the motivation for their intention to return during a period of absence is not a relevant consideration. The burden of proof to show that the property continues to be the sole or principal home will only switch to the tenant when it has been shown that there has been a sustained period of absence.

Further, for a property to be sub-let for the purpose of bringing a secure tenancy to an end the tenant must have granted exclusive possession to the sub-lessee - the receipt of rent during periods of absence was not enough.

Facts

The Claimant Local Authority sought a possession order against the Defendant on the basis that her tenancy of a studio flat (“the Flat”) was no longer secure because she did not occupy the flat as her only or principal home. D admitted having another home in Kent, and that the flat was lived in by another person.

Issues
  • Whether in finding that the flat remained the defendant’s principal home because she wanted to use it as a springboard to move to larger accommodation, the judge had adopted an approach to social housing which was contrary to public policy;
  • Whether the judge’s finding that the flat had not been sublet was wrong as the other occupier had paid the defendant for living in the flat;
  • Whether the burden should have been on the Defendant to prove that she continued to reside in at the Property.
First Instance

HHJ John Mitchell QC found that the Flat continued to be the Defendant’s principal home on the basis that:
  • She continued to use it for most of her formal correspondence;
  • She did not intend to remain in her other home in Kent as she had a baby son and needed support from her mother in London (where the subject flat was); and
  • Although she did not intend to return to the Flat on a permanent basis, she wanted to keep the flat as her home "so she could use it as a springboard to move to larger accommodation when she was offered it."
The Judge rejected a submission from the Claimant that Defendant was under an evidential burden to rebut a presumption that she had ceased to reside at the Flat because on the facts of the case. The Defendant continued the visit the property regularly and stayed there at weekends meaning that it continued to be occupied by her as a home.

He also found that the Defendant, though receiving money for the use of the Flat, was not subletting it, because she returned to share the Flat with the alleged sub-lessee at weekends and there was therefore no exclusive possession.

There was various evidence that the flat had been sublet, but the Judge found against the Claimant on the facts. The Claimant also appealed on various grounds attacking the Judge’s approach to the evidence.

Decision on appeal

The grounds of appeal relating to the Judge’s approach to the evidence were all dismissed. Mostyn J held that:
  • The Defendant’s motivation for intending to return to the flat and to continue to retain it as her principal home was not relevant to the factual enquiry that the court was called upon to the determine. The key point was that the trial judge had found as a fact that the Defendant continued to occupy the flat as her principal home. Public policy or motive did not form part of the test [22].
  • The trial judge had been correct, having found as fact that the Defendant continued to occupy the flat as her home, to hold that there was no inference or presumption arising that the Defendant had ceased to occupy. The facts of the case were therefore not on all fours with London Borough of Islington v Boyle [2011] EWCA Civ 450, where such a presumption was said to arise, and the burden was placed on the tenant to prove that the flat continued to be her only or principal home [24] - [25].
  • Without a grant of exclusive possession, there simply could not be a sublet of the Property [26].
Comments

Although in this case the tenant had two homes, the Judge made a finding that she returned regularly to stay at the subject property. On this basis, the Judge held that this was not a case where the tenant’s absence from the property was sufficiently prolonged for the evidence burden to switch to the tenant to show that she still resided at the property, and that such residency was as her sole or principal home (as in Islington v Boyle [2011] EWCA Civ 1450).

The decision also confirms that the test is purely one of fact, and the tenant’s motivations for continuing to maintain the property has her principle home are irrelevant, even if they are arguable ulterior, or could be construed as taking advantage of the system.


Reasonableness

Bracknell Forest Borough Council v Green
[2009] EWCA Civ 238

Summary

In order to overturn a first instance decision on the issue of whether it was reasonable to order possession the appellant had to show that there was an error of principle or that the decision was obviously wrong.

Facts

C, the claimant landlord, sought possession pursuant to ground 16 of schedule 2 to the Housing Act 1985 (under occupation and the provision of suitable alternative accommodation). D1 had lived there all his life (he was 50 years old) and had succeeded to a secure tenancy of the property on his mother’s death. He lived at the property with his sister D2. They gave evidence of their attachment to the house and their upset at the prospect of having to move. C offered alternative accommodation and relied on the under occupation by Ds and its own dwindling housing stock.

First instance decision

The judge found that one of the offered properties was suitable but went onto state that
    " .. there is no point in discussing this issue [i.e. of suitable alternative accommodation] until first the issue of reasonableness has been decided. Plainly if it is unreasonable to make a possession order it is immaterial whether suitable alternative accommodation is available."
Grounds of Appeal

C appealed on the basis that: (a) the judge had erred in not taking into account the issue of suitable alternative accommodation when considering the issue of reasonableness; and (b) that the decision was wrong on the facts as he gave insufficient weight to the matters which made it reasonable to make a possession order.

Decision on appeal

After making reference to Lord Hoffmann in Biogen v Medeva plc [1997] RPC 1, Mummery LJ stated that the decision as to reasonableness
    " .. requires the lower court to apply an imprecise legal standard to the overall evaluation of all the circumstances relevant to that issue. Appellate reticence is not confined to cases turning on the assessment of the credibility of witnesses who have given oral evidence in the lower court or to cases involving the lower court’s exercise of a judicial discretion. It also befits the case of the lower court’s overall evaluation of facts on the application of an imprecise legal standard rather than of a particular legal principle." (paras 26 and 27).
Applying that to the appeal (and dismissing it): as to the first ground, the judge’s comments on the materiality of alternative accommodation, when taken in the context of his overall decision, did not mean that he had excluded them from his considerations; and as to the second, the judicial process of balancing the circumstances is one for the lower court and the judge was entitled to come to the conclusion that he did.


Succession

'residing with'

Freeman v London Borough of Islington
[2009] EWCA Civ 536

Summary

Although a daughter had lived at the property with her father for 7 days a week in the year prior to her death, she did not satisfy the test for succession. It was not enough that she lived at the property, but she must also have intended to make a home there. In this case, she had initially stayed at the property in order to nurse her father and maintained her own property. During that period therefore, she had not ‘resided with’ her father.

Citation

Having reviewed a number of authorities, finishing with a passage in Hildebrand v Moon (1990) 22 HLR 1, CA, Jacob LJ said this at paras 27-29:
    "This is an important passage. It recognises the importance of considering the would-be successor's intention. It shows that an intention to live with the tenant to nurse him/her does not preclude "residing with" but on the other hand is not conclusive of it. And it shows that one does look to the intention after death of the tenant – to throw light on the nature of the occupation pre-death.

    The authorities also clearly establish that mere physical presence is not enough to amount to 'residing with'. There must be to a significant degree an intention which can be characterised as making a home with the tenant – not just staying there.

    Moreover – and this was not in dispute – the nature of the occupation must have the necessary qualities of 'residing with' for the whole year before the death."

And Waller LJ at para 40:
    "It seems to me that the test can be encapsulated by considering whether the appellant could fairly say when being asked to leave the premises after the death of her father- "But it is my home and it has been for 12 months". On the facts as found by the judge the appellant could say "It was her home", but not for the whole period of 12 months."
Joint tenant becomes sole tenant prior to introduction of secure tenancy regime

Birmingham City Council v Walker
[2007] UKHL 22

The defendant's mother had been a joint tenant of a local authority, and had become a sole tenant, prior to the introduction of the secure tenancy regime created by the Housing Act 1980. As she had become a sole tenant prior to that date (in fact long before, in 1969) she was not a successor within the meaning of s88(1)(b) of the 1985 Act. This meant that the defendant was entitled to succeed to the tenancy.

Ground 16 - death of tenant concealed

Newport City Council v Charles
[2008] EWCA Civ 893

Summary

A tenant who concealed his mother’s death for three years in order to avoid being moved to a different property on Ground 16 could not be evicted on that ground because the time limit for doing so had expired before the local authority found out about her death. They were not able to rely upon an estoppel.

Facts

The tenant’s son succeeded to her tenancy on her death but for three years he deliberately failed to notify the local authority landlord of his mother’s death. When they became aware of the situation, the local authority claimed possession under Ground 16 of Sched 2 to the Housing Act 1985, with the intention of moving him to a smaller property.

The authority could only rely on Ground 16 within three years of her death. The issue was whether the son was estopped from asserting the date of mother’s death to defeat the local authority’s claim.

Decision

A local authority’s right to possession against a person succeeding to a tenancy on the death of a family member other than a spouse on the ground that the accommodation was more than he reasonably required is not an interest in land capable of giving rise to a proprietory estoppel against the tenant. The local authority was not therefore entitled to an order for possession.

Survivorship and succession

Solihull Metropolitan Borough Council v Hickin
[2012] UKSC 39

Summary

On the death of one of two joint tenants under a secure tenancy the survivor became the sole tenant. When that person left the property the tenancy continued but ceased to be secure. That meant that their daughter who remained in occupation had no right of survivorship when the surviving joint tenant died. The statutory code of succession did not replace the common law.

Facts

In 1967 A and B became joint tenants of S and, on the coming into force of the Housing Act 1980, they became secure tenants. At some point thereafter, A left the property. B remained living there until she died. At all times, their daughter, C, resided at the property.

On B’s death, S took the view that A became the surviving tenant and as he was not living at the property, they served a notice to quit on him. They then commenced possession proceedings against C. C defended those proceedings on the basis that she had the tenancy by way of succession.

C’s case was that she succeeded as sections 87 to 89 of the 1980 Act vested the tenancy in her as (i) the secure tenant, B, had died; (ii) it was a periodic tenancy; (iii) C had occupied the property as her only or principal home for the 12 months preceding her mother’s death; and (iv) that B was not herself a successor. She maintained that the statutory code for succession displaced the common law on survivorship which would have made A the sole tenant.

Decision

The Supreme Court was split 3:2, but dismissed C’s appeal and found for S. The court held that the statutory code did not displace the contractual arrangements between the parties and therefore A took a sole tenancy by survivorship. There remained a tenant in that A was a tenant. It followed that there were no rights of succession to pass to C at this point in time. Lord Sumption at paragraphs 8 and 14:
    “The result, at common law, is this. By virtue of section 81 of the Housing Act, both Mr and Mrs Hickin were secure tenants for as long as at least one of them occupied the property as an only or principal home. Upon Mrs Hickin's death, the tenancy subsisted and Mr. Hickin remained the tenant. He did not succeed Mrs Hickin. He simply continued to enjoy the same rights as he had always had, under an agreement with the local authority landlord to which he was and remained party. The only change in his position was that there was no longer another person concurrently enjoying the same rights. Accordingly, he became the sole tenant. Since he was absent, there was now no one occupying the property as his or her only or principal home. The "tenant condition" in section 81 of the Act was therefore no longer satisfied, and the tenancy while continuing to exist ceased to be secure. But because a tenancy may be a secure tenancy at any time when the landlord condition and the tenant condition are satisfied (see section 79), it would have been open to Mr. Hickin to revive its secure status by returning to live in the property at any time before the tenancy was terminated by service of a notice to quit.

    …In my judgment, the tenancy did not vest in [C[ upon [B's] death because the rights of the previous tenant still subsisted. ‘A secure tenant’ had not died. All that had happened was that one of the two persons constituting the secure tenant had died.”

Suitable alternative accommodation

Tenant's family

London Borough of Wandsworth v Randall
[2007] EWCA Civ 1126

Section 89(2) of the Housing Act 1985 - dealing with succession to secure tenancies - provides that where the secure tenant dies and there is a person qualified to succeed, and the tenancy is a periodic tenancy, the tenancy vests in that person. Where the accommodation is more extensive than is reasonably required by the new tenant and his family Ground 16 (and Part IV of Schedule 2 to the 1985 Act) provides that the landlord may recover possession if it provides alternative accommodation that is reasonably suitable for the tenant and his family. The issue in this case was at what point in time are family members residing with a tenant who succeeds to the tenancy pursuant to these provisions to be treated as members of his or her family for these purposes (para 10). It was held that the composition of the family is to be determined as at the date of the hearing; not the date of succession.

The local authority landlord sought possession of a four bedroom house on the ground that the accommodation was more extensive than reasonably required by the successor, a man initially on his own. However, before the hearing his mother and half-sister moved into the property. The landlord offered the tenant a one bedroom flat as alternative accommodation. As the relevant date was the date of the hearing the alternative accommodation was insufficient.


Date that accommodation should be available

Holt v Reading Borough Council
[2013] EWCA Civ 641

Summary

In a suitable alternative accommodation case it is possible to make a possession order conditional on the offer of suitable accommodation. There is no need for a local authority to have suitable accommodation available either at the date that proceedings were begun or even by the date of the hearing. But the court must be satisfied that suitable accommodation will be available when the order for possession is to take effect. If a conditional order is to be made, it should be limited in time and there should be liberty to apply.

Facts

T, a secure tenant, had lived at the property all her life with her father and mother. When her mother died, L considered that she was under-occupying the three-bedroom house and asked her to apply to them for a one-bedroom property. L said that they would give her priority. T refused to apply or move, citing her attachment to her home.

Issues

The issues related to the following points:
  • Whether it was reasonable to make an order for possession; and
  • Whether suitable alternative accommodation was going to be available when the order came into effect. As to this, the question was whether that accommodation had to be identified either by the time the proceedings were issued or at the latest by the time the order was made.
First instance

The court made a possession order. Although T did have a significant attachment to the property, L’s needs outweighed hers. A conditional order was made so that T would have to give up possession on L making an offer of suitable accommodation (the characteristics of which were defined by the judge).

T appealed to the Court of Appeal.

Decision on appeal

The Court of Appeal dismissed the appeal and found for L.

The trial judge had weighed the material considerations carefully and had not erred in determining that it was reasonable to make a possession order.

On the second issue, the Court first pointed out that an order for possession cannot be made, whether conditional or otherwise, unless the court is satisfied that suitable accommodation will be available when it is to take effect. However, there was no need to have a specific property in mind. Kitchin LJ:
    "…there is nothing in the legislation which says that the court must be satisfied that these requirements are fulfilled by reference to a particular property. That may be the case, but in my judgment it need not necessarily be so. If, in the particular circumstances of the case and having regard to the matters set out in paragraph 2 of Part IV, the court is satisfied that accommodation having particular characteristics would be reasonably suitable to meet the needs of the tenant and his family and that such accommodation will become available then it seems to me that the court has jurisdiction to make a possession order which will not take effect until such accommodation has in fact become available."
The Court went on to say that it will not always be appropriate to make a conditional order but if a conditional order was to be made, it should be limited in time and there should be liberty to apply. Kitchin LJ:
    "That is not to say it will be appropriate to make a conditional order whenever a local housing authority seeks possession in a case of this kind. Indeed I believe the court should consider with great care whether such an order is necessary and appropriate in the particular circumstances of the case before it, or whether justice would better be served by adjourning the final determination of the application until a particular property has been identified. Relevant circumstances may include, for example, whether it would be unreasonable to impose on the tenant the burden of bringing the matter back to court, perhaps as a result of the tenant's vulnerability or personal circumstances; whether the tenant is legally represented; how frequently accommodation having the necessary characteristics becomes available in the relevant area; and how variable such property tends to be."

Tenancy at will

Banjo v Brent London Borough Council
[2005] EWCA Civ 292

A person in occupation under a tenancy at will is not in occupation as a secure tenant under s86 of the Housing Act 1985.

T had been in occupation under a long lease. After expiry of that lease (in 1982) he remained in occupation as a tenant at will. No rent was paid and no periodic tenancy arose. He was not therefore a secure tenant and was no longer entitled to remain in possession after the tenancy at will had been determined (in 2002). (T lost a claim to purchase the house under the 1967 Act because it was barred by limitation and by the equitable principle of laches). Chadwick LJ:
    "17. As I have said, Mr Banjo remained in occupation of the property, paying no rent. The Borough took no steps to evict him. The only inference that can be drawn is that, having been in possession as tenant under the long lease, Mr Banjo remained in possession with the consent of the landlord. The effect, under the general law, is that following the termination of the fixed term he held over as tenant at will.

    25. The requirement that the court shall not entertain proceedings for possession unless the landlord has first served a statutory notice, now in section 83(1) of the 1985 Act, and the limitations on the power of the court to make an order for possession, now in section 84(1) of, and schedule 2 to, that Act, apply only in relation to "a dwelling-house let under a secure tenancy". The condition upon which the security of tenure which those provisions provide is based is that there is a tenancy of the dwelling-house or a licence to occupy (see section 79(3) of the Act) at the relevant time.

    26. That condition will be satisfied where the tenant holds under a periodic or fixed term tenancy, because that tenancy cannot be brought to an end without an order of the court section 82(1). But section 82(1) of the Act does not prevent the landlord from bringing to an end, under the general law, a tenancy which is not a periodic or fixed term tenancy. In particular, section 82(1) does not prevent the landlord from determining a tenancy at will without any order of the court. So the condition will not be satisfied where the tenant held under a tenancy at will which has been determined before proceedings for possession are commenced. In such a case, Part IV of the 1985 Act does not provide security of tenure.

    32. Mr Banjo was in possession of the property at 26 Claremont Road from June 1982 until February 2002 as a tenant at will. The tenancy at will was brought to an end by the Borough's letter of 8 February 2002. That letter was sufficient notice that the landlord was no longer content for him to remain in possession.

    33. That conclusion is a sufficient answer to the tenant's claim to security of tenure and protection from eviction under Part IV of the Housing Act 1985. No periodic tenancy arose on the determination of the long lease in June 1982 either under section 86 of the 1985 Act or by implication from the demand, payment or acceptance of rent. The tenancy at will which did arise, under the general law, was determined in February 2002. Thereafter Mr Banjo remained in possession as trespasser he was neither tenant nor licensee. Section 84 of the Act had no application. The judge was wrong to refuse the order for possession which the Borough had sought."

Variation of terms

Kilby (Maurice) (R on the application of) v Basildon District Council
[2007] EWCA Civ 479

Section 102 of the Housing Act 1985 provides that:
    "(1) The terms of a secure tenancy may be varied in the following ways, and not otherwise..

      (a) by agreement between the landlord and the tenant;

      (b) to the extent that the variation relates to rent or to payments in respect of rates, council tax or services, by the landlord or the tenant in accordance with a provision in the lease or agreement creating the tenancy, or in an agreement varying it;

      (c) in accordance with section 103 (notice of variation of periodic tenancy)."
In fact the Council's standard tenancy agreement contained the following clause:
    "11. We can only change the terms of this agreement if a majority of the Tenants' Representatives agree to this at a special meeting where at least 25% of the Tenants' Representatives are present. (This does not apply to changes in rent nor changes needed to meet legal requirements.) When changes are agreed, we will give you four weeks' notice before they come into effect."

The Council wanted to make various changes to its standard tenancy agreement. It consulted on the changes but it did not obtain consent in accordance with clause 11. The Council ultimately resolved to adopt the changes. Mr Kilby objected.

The CA held that "the Council did not have the power to amend statute by these means, in other words to give up its power of unilateral variation. Sections 102 and 103 constitute a complete code governing the variation of the terms of a secure tenancy." (Rix LJ at para 34).

The effect of this decision is that the Council was able to make the changes without complying with clause 11.


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