Non-payment of rent — Possession order — New agreement between tenant and council — Tenant failed to abide by agreement — Council sought to execute warrant for possession two years after grant — Tenant obtained declaration that she was tenant by operation of law as result of new agreement — Appeal dismissed
On August 6 1984 the council granted a joint tenancy to B and her husband. They moved in with their six children. In January 1986 the husband left. B and the children remained in the flat, but she had difficulty paying the rent. On January 29 1992 the council obtained a final order for possession for non-payment of rent and an order for payment of the arrears amounting to &tlb;2,307.63. By section 82(2) of the Housing Act 1985 the effect of that order was that the joint tenancy would end on February 12 1992. B was unable to satisfy the order for the arrears. But before the 14-day period for payment elapsed, she entered into an agreement with the council that she could continue to live in the flat provided she paid a sum equivalent to the rent and a regular sum in reduction of the arrears. The council thereafter documented her liability under the agreement to make weekly payments as if they were rent, increasing the amounts due in accordance with their general rental policy. B failed to comply with the agreement.
In May 1994 the council issued a warrant for the enforcement of the possession order obtained over two years before. The warrant was served on B in May. A bailiff executed the warrant by locking and boarding up the flat on June 8. B applied to the county court for a declaration that she was a tenant by operation of law as a result of the February 5 1992 agreement and a mandatory injunction that the council should readmit her to the flat. The county court found for B, but the council appealed.
Held The appeal was dismissed.
1. The mere fact that B agreed to pay rent and the council agreed to accept it were not conclusive of a tenancy in such circumstances. Where a tenancy had been terminated subsequent payment and acceptance of rent did not necessarily signal the grant of a new tenancy. It all depended on what the parties intended in the circumstances. However, a grant of exclusive possession of residential property for a fixed or determinable period at a rent was, unless the circumstances indicated an intention not to create a legal relationship or one other than a tenancy, the grant of a tenancy whatever the professed intentions of the parties: see Street v Mountford [1985] 1 EGLR 128.
2. The distinction between a tenancy and a licence of a dwelling-house in the context, as here of security of tenure, was immaterial, for relevant provisions of the 1985 Act applied to a licence to occupy as they applied to a tenancy.
3. By virtue of section 82(2) the order for possession brought her tenancy to an end on February 12 1992 and no later. Accordingly, her occupation after that date could only be that of a trespasser liable to pay mesne profits unless and until the council executed the warrant for possession or granted her a new tenancy or a licence to stay. The intention of the agreement was to permit B to remain in exclusive occupation of the property at a rent and to grant a new tenancy when her existing tenancy came to an end.
Bryan McGuire (instructed by the solicitor to Brent London Borough Council) appeared for the council; William Geldart (instructed by Daniel & Harris) appeared for B.
