Expiry of long lease — Tenant continuing to occupy without paying rent — Appellant landlords giving notice of intention to seek possession — Possession proceedings — Judge holding tenancy at will in existence protected as secure tenancy — Nature of tenant’s occupation — Application of section 86 of Housing Act 1985 — Appeal allowed
The respondent occupied a house under a long lease that provided for an annual rent to be paid to the appellant landlords half-yearly in March and September. When the contractual term of the lease expired, the respondent continued in occupation but paid no rent. In February 2002, the appellants gave notice of their intention to take proceedings for possession. The respondent sought a declaration that he was entitled to purchase the freehold of the property under the provisions of the Leasehold Reform Act 1967. In the same proceedings, the appellants brought a Part 20 claim for possession.
The judge held that the claim to enfranchise was barred by limitation. He also dismissed the possession claim, holding that although the respondent’s long lease had expired, the respondent had continued in occupation thereafter as a tenant at will, and qualified as a secure tenant for the purposes of the Housing Act 1985 because both the landlord condition in section 80 and the tenant condition in section 81 had been satisfied.
On appeal, the appellants contended that section 86 of the 1985 Act, on its true construction, had the effect that no secure tenancy could arise by reason only of continued occupation following the determination of a fixed-term tenancy of more than 21 years.
Held: The appeal was allowed.
After the fixed term of the long lease had come to an end, the respondent had held over as a tenant at will under the general law. No periodic tenancy had arisen, either under section 86 of the 1985 Act or by implication from the demand, payment or acceptance of rent. Section 86 did not apply because the fixed-term tenancy under which the respondent had occupied was not itself a secure tenancy: it was a “long tenancy” for the purposes of para 1 of Schedule 1 to the 1985 Act, which, by virtue of section 79(2)(a), could not be a secure tenancy. The tenancy at will had been determined in February 2002, and the respondent had thereafter remained in possession as a trespasser; he had been neither tenant nor licensee.
The judge had erred in finding that the respondent had security of tenure. Security of tenure under Part IV of the 1985 Act depended upon the existence of a tenancy that could not be brought to an end by the landlord except by obtaining an order of the court for possession. By virtue of section 82(1), that condition would be satisfied where the tenant held under a periodic or fixed-term tenancy, but section 82(1) did not prevent the landlord from bringing to an end, under the general law, a tenancy that was not a periodic or fixed-term tenancy. Accordingly, the condition would not be satisfied where, as in the present case, the tenant held under a tenancy at will that had been determined before proceedings for possession were commenced: Harrison v Hammersmith and Fulham London Borough Council [1981] 1 WLR 650 considered; Chamberlain v Farr (1942) 112 LJKB 206 distinguished.
Per curiam: There was some doubt as to whether Part IV of the 1985 Act could apply to a tenancy at will, notwithstanding that the landlord condition in section 80 and the tenant condition in section 81 were both satisfied. Sections 82 to 85 would not provide security of tenure, sections 87 to 90 would not provide rights of succession, and it was difficult to see how, in practice, the other provisions of Part IV could have effect against a landlord that had an unrestricted right to bring the tenancy to an end at will.
Martin Russell (instructed by the solicitor to Brent London Borough Council) appeared for the appellants; James Hanham (instructed by JD Spicer & Co) appeared for the respondent.
Sally Dobson, barrister
