Tenant occupying house as only home — Local authority-owned property — Landlord required tenant to remain there on promotion in employment to enable him to be on call — Tenant claiming right to buy — County court holding that tenant was not a secure tenant at relevant date owing to change in conditions of employment — Court of Appeal dismissing appeal by tenant
E was the tenant of a cottage called “Highfields”, Coombe Abbey Park. The council was his landlord. On January 23 1990, E claimed to exercise the “right to buy” under section 118 of the Housing Act 1985, which conferred that right upon a secure tenant. By section 79(1) a tenant was secure at any time when the conditions described in sections 80 and 81 as “the landlord and tenant conditions” were satisfied. The landlord condition was satisfied if the landlord’s interest belonged to, among others, a local authority. The tenant condition was satisfied if the tenant was an individual and occupied the dwelling-house as his only and principal home. Therefore, at the relevant date the landlord and tenant conditions were both satisfied. However, section 79(2) provided that the definition in section 79(1) was subject to the exceptions in Schedule 1, which included that a tenant was not a secure tenant if he was an employee of the landlord and his contract of employment required him to occupy the dwelling-house for the better performance of his duties (para 2(1)).
In October 1978, E was employed by the council as water bailiff. In 1979 he was offered a tenancy of “Highfields”. He signed a document by which he agreed that his right to occupy the premises would cease if his employment by the council ended. But his contract of employment did not expressly require him to live in the cottage and there was no implied term that he should. In 1983 E was promoted to assistant ranger; he took on more duties and was paid a higher salary. It was a condition of his employment that he would continue to reside in the cottage for the better performance of his duties. The county court found that the tenancy, when granted, had been a secure tenancy, but the change in E’s terms of employment in 1983 brought it within the exception in para 2(1). Therefore, it was not a secure tenancy at the relevant date and the tenant could not exercise the right to buy. E appealed.
Held The appeal was dismissed.
1. The appeal turned on the construction of the exception in para 2(1). That paragraph was in the present tense throughout. It said that the tenancy was not secure if the tenant is an employee of the landlord and his contract requires him to occupy the dwelling-house for the better performance of his duties. Prima facie therefore, it had a continuing and once-and-for-all effect.
2. By contrast, para 2(3)(b) provides that a tenancy is not a secure tenancy if the tenant is an employee of a fire authority and the dwelling-house was let to him by the authority in consequence of that requirement.
3. It seemed odd that in the case of firemen in para 2(3) Parliament intended to look solely at the inception of the tenancy, whereas in the case of local authority employees in para 2(1) it imposed an ongoing condition. Nevertheless the distinction between the present tense in para 2(1) and the past tense in para 2(3)(b) was clear and had to be given effect to.
William Geldart (instructed by Brindley Twist Tafft & James) appeared for the appellant; Douglas Readings (instructed by the solicitor to Coventry City Council) appeared for the respondent council.
