Subtenancy — Non-payment of rent — Possession — Headlease not providing for lessor to obtain vacant possession when required — Whether sublease creating secure tenancy — Appeal allowed
By a lease between P, a private landlord, and the respondent council, P let and the respondents took “with vacant possession” the lease of a flat for a term of one year and nine months from 1995 to 1997 (the headlease). The respondents covenanted not to use or permit the premises to be used other than as temporary housing accommodation in accordance with para 6 of Schedule 1 to the Housing Act 1985.
Paragraph 6 provided that a tenancy was “not a secure tenancy if: (a) the dwelling-house had been leased to the landlord with vacant possession for use as temporary housing accommodation, (b) the terms on which it has been leased include provision for the lessor to obtain vacant possession from the landlord on the expiry of a specified period or when required by the lessor, (c) the lessor is not a body which is capable of granting secure tenancies, and (d) the landlord has no interest in the dwelling-house other than under the lease in question or as a mortgagee”.
During the currency of the headlease, the respondents granted a subtenancy of the premises to the appellant. This continued undisturbed for more than six years. The subtenancy was expressly stated not to be secure and the respondents proceeded on that footing. In August 2003, they served on the appellant a common law notice to quit for non-payment of rent, requiring her to give up possession of the premises within one month. The appellant refused and the respondents made a claim for possession and arrears of rent in the county court.
A preliminary issue was tried as to whether para 6 of Schedule 1 to the Act applied. The district judge held that the appellant did not hold a secure tenancy and granted the respondents’ application for possession. The appellant appealed.
Held: The appeal was allowed.
It was clear from the word “and” at the end of para 6(c) that, if the exception was to apply, the requirements of all four subparagraphs had to be satisfied. It had been agreed that para 6(c) and (d) had been satisfied. Moreover, para 6(a), as applied to this case, was concerned only with the position as between P and the respondents, and it was clear from the headlease that, as between those two parties, the premises had been leased to the respondents with vacant possession. The appellant’s actual occupation at any given time was immaterial.
Paragraph 6(b) had not been satisfied. Its opening words indicated that the headlease had to include a single provision for P, as lessor, to obtain vacant possession either on the expiry of a specified period or when required by him. On that view, para 6(b) had not been satisfied since the headlease included only a provision for P to obtain vacant possession on the expiry of a specified period: Tower Hamlets London Borough Council v Abdi [1993] 1 EGLR 68; [1993] 06 EG 102 considered.
If there were two alternative provisions, the second would be otiose since every lease effectively provided for the lessor to obtain vacant possession on the expiry of a specified period.
Mark Wonnacott (instructed by Mary Ward Legal Centre) appeared for the appellant; Nicholas Grundy (instructed by the legal department of Haringey London Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
