Tenant or lodger — General principles — Labelling — Pretences — Construction of agreements — Whether occupiers holding tenancies or licences — Defendants held to be tenants
In a single judgment to which all members of the court contributed, certain general principles were stated in relation to the problem of deciding whether a person was a secure tenant or a lodger. Whether a person is a tenant or a lodger depends on the true bargain between the parties. The labels which the parties agree to attach give no guidance at all. The dividing line between exclusive and non-exclusive occupation depends on a combination of factors. Although prima facie the parties must be taken to mean what they say, the courts must be watchful for pretences. The exposure of such a pretence does not necessarily lead to the conclusion that their agreement is a sham, but only to the conclusion that the terms of the true bargain are not wholly the same as that of the bargain appearing on the face of the agreement.
Aslan v Murphy (no 1)
The appellant was the occupier of a basement room that he held under an agreement which recited that “the Licensor is not willing to grant the Licensee exclusive possession of any part of the room” and that the licensor might permit others to use the room; the agreement was worded on the basis of sharing and deprived the appellant of rights of occupation for 90 minutes each day. The landlord retained a set of keys.
Held The appellant was a tenant. The two provisions, namely sharing and denying occupation for 90 minutes each day were wholly unrealistic and were clearly pretences. The landlord’s right to retain the keys did not decide the matter as such, but certain other provisions in respect of which the landlord would need keys were relevant.
Aslan v Murphy (no 2)
Following the order for possession made in the county court, the local authority made a closing order on the respondent in respect of the appellant’s room. The respondent commenced fresh proceedings claiming that, by the combined effect of sections 276 and 277 of the Housing Act 1985, she was entitled to possession.
Held Section 276 of the 1985 Act does not confer a right of possession on a landlord, it merely removes the statutory security of tenure that would otherwise protect the tenant. Section 277 creates an offence of permitting someone to use premises the subject of a closing order; nothing in this section avoids the need to determine a tenancy by a notice to quit; this had not been done.
Wynne v Duke
The appellant holds an agreement in which is recited that “the occupier accepts as a fundamental term and condition of this Agreement that not tenancy is created but there is a mere right to occupy the premises as a bare licen[s]ee”, and “there is no right of exclusive occupation”. The accommodation consists of a house and the agreement contained provisions for sharing with others at the owner’s discretion; the respondent retained a key.
Held The appellants were tenants; the true bargain was that the appellants should be entitled to exclusive occupation unless and until the respondent wanted to exercise her right to move another party in. Applying the test of what was the true bargain between the parties, the court would have wanted to know what steps (if any) were being taken by the owner to fill the vacancy. If the owner was not actively seeking another occupant, it would be inherently more likely that the first couple were entitled to exclusive possession of the whole in the meanwhile and so were tenants.
Linda Pearce (instructed by Brocklesby & Co) appeared for the appellant in the first two cases; and Ashe Lincoln QC (instructed by Silverman Sherliker & Co) appeared for the respondent. In the third case, John Haines (instructed by Cotton Gummersall & Palmer, of Epsom) appeared for the appellants; and BruceColeman (instructed by Coffey Whitty & Co, of Thornton Heath) appeared for the respondent.
