Right to occupy premises — Exclusive possession — Premises occupied by club — Original agreement created licence — Licence terminated on one month’s notice — Whether licence or tenancy — Absence of rent provision — Indeterminate term — Licence conferred on all club members for time being — Circumstances in favour of licence rather than tenancy
The plaintiff purchased land and buildings at Alperton Lane, Alperton, West London, from the London Borough of Brent (“LBB”). The land and buildings had been occupied since 1957 by the London Borough of Brent Social Club (“the club”). The plaintiff brought an action for possession. The defendants were sued on behalf of all club members. The predecessor of LBB had made the premises available to the club under “the 1957 agreement”. The agreement was described as a licence, terminable by either party on not less than one month’s previous notice in writing, and stated that it was not intended to confer upon the licensees or the club “any tenancy lease or other estate interest or right in the premises or any part thereof”. The premises then consisted of two buildings. At the club’s request a new building was erected in 1966 at a cost of £15,000.
In 1993 LBB wanted possession of the premises. On July 30 LBB served notice on the club, purporting to give notice under the 1957 agreement, terminating it on September 6 1993. The land was transferred to the plaintiff in March 1994. The plaintiff claimed that: (1) the only right conferred on the club was to occupy the premises which derived from the 1957 agreement; (2) the club had no more than a licence terminable on one month’s notice; (3) when the new building was erected the licence was impliedly varied to take account of the new circumstances, ie the new building extended to land extending beyond that included in the 1957 agreement; (4) that licence had now been terminated. The defendants contended that whatever the original status of the 1957 agreement, it had been replaced by something different from July 1966 when the new club-house was opened. From that date it had enjoyed de facto exclusive possession of the site which it now enjoyed. The only legitimate conclusion was that it had then been granted a tenancy of the new buildings and the site.
Held Judgment was given for the plaintiff.
1. Exclusive possession was not a test negating the possibility of the occupier’s being a licensee: see Cobb v Lane [1952] 1 All ER 1199.
2. The absence of a provision for the payment of rent in the 1957 agreement pointed to the fact that the arrangement was not of a commercial character and raised the question whether it might be classified as a licence: see Street v Mountford [1985] 1 EGLR 128.
3. The agreement was to continue indefinitely unless determined by either party giving one month’s notice to expire on any day. The purported grant of an indefinite term capable of being brought to an end by one of the parties would fail for uncertainty: see Prudential Assurance v London Residuary Body [1992] 2 EGLR 56.
4. The agreement purported to confer a licence on all members of the club for the time being. A purported grant of a tenancy in such circumstances would not be valid: see Jarrett v Ackerley (1915) 113 LT 371.
5. Furthermore, the events of 1966 did not cause any material change in the relationship between the council and the club.
Anthony Mann QC and Timothy Jennings (instructed by Travers Smith Braithwaite) appeared for the plaintiff; Peter Crampin QC and Alan McCormack (instructed by Mackenzie Persaud) appeared for the defendants.
