Employee tenant required to live in specified accommodation for better performance of duties — Redundancy — Employee remaining in accommodation — New post with same employer — Remaining in property pending readiness of new accommodation — Resignation — Whether occupation had become secure tenancy — High Court holding that it had not — Court of Appeal allowing appeal
In July 1991 G was appointed caretaker at Calcot Junior School, Calcot, near Reading. His terms of employment required him to occupy the School Bungalow, Curtis Road, Calcot, Reading, for the better performance of his duties. The rent was 10% of his salary, deducted from his monthly wages. In June 1993 he was made redundant and the council gave him notice to vacate the bungalow. He did not go and the council threatened possession proceedings. G obtained a post at Embrook School, Wokingham, Berkshire, also run by the council. He was required to occupy a property, when it became available, for the better performance of his duties. Meanwhile the council postponed taking possession of the bungalow.
G subsequently resigned and the council commenced possession proceedings. It was agreed that, if he had not resigned, he would have been allowed to stay in the bungalow until the new property became available. The county court made a possession order, but G appealed. The question was whether the tenancy, initially excepted from being a secure tenancy, had become such by the time possession proceedings commenced.
Section 79(2) of the Housing Act 1985 provided that a tenancy under which a dwelling-house was let as a separate dwelling was a secure tenancy, subject to the exceptions in Schedule 1. Para 2(1) provides that a tenant is not secure if he is an employee of the landlord and his contract of employment requires him to occupy the dwelling for the better performance of his duties.
Held The appeal was allowed.
1. Para 2(1) was in the present tense and referred to an ongoing set of circumstances. Tenancies might move in and out of secure tenant status as the prescribed circumstances applied: see Elvidge v Coventry City Council [1994] QB 241.
2. Part satisfaction of para 2(1) would prevent security from arising for a limited period, provided the occupation by the tenant was still referable to his employment and to the requirement that he occupied the dwelling-house for the better performance of his duties without any agreed or intended change in the nature and purpose of his occupation: see South Glamorgan City Council v Griffiths [1992] 2 EGLR 232.
3. In this case, but for G’s new appointment at Embrook, the council would have recovered possession of the accommodation in the summer of 1993 on the basis that his employment at Calcot had terminated. On the “referable” test, the reason for the continued occupation was due to the change in its nature and purpose. The arrangement was for the convenience of the council not G who found the hours and travelling very difficult.
4. In the circumstances G’s tenancy had ceased to come within para 2(1) by the time he resigned from Embrook and was a secure tenancy which had not been validly determined in accordance with the 1985 Act.
Heather Williams (instructed by Dexter Montague & Partners, of Reading) appeared for G; Jeremy Morgan (instructed by the solicitor to Berkshire County Council) appeared for the council.
