Landlord and tenant – Periodic tenancy – Licence – Claimant asserting tenancy over sites occupied at annual street fair organised by defendant city council – Whether claimant having annual periodic tenancy for period of fair – Whether defendants entitled to damages for breach of covenant for quiet enjoyment – Claim dismissed
The claimant was from a showman family and a member of the Showmen’s Guild, a trading association for the travelling fairground community. She asserted a tenancy over two sites, or parcels of land, which she had occupied over a number of years at the annual St Giles Fair in Oxford. The fair took place each year on the first Monday and Tuesday following 1 September. It had for many years been organised by the defendant city council, albeit that the land upon which the fair was held was owned by the highways authority. The claimant sought, among other things, damages for breach of covenant for quiet enjoyment because she had been denied the full use of her sites and had been unable to deploy a particular fairground attraction that she wanted to bring to the fair.
The claimant contended that she had an annual periodic tenancy for the period embracing the Sunday, when attractions were set up for the fair, the two days of the fair and the period, on the relevant Wednesday in each year, when attractions were being dismantled and removed. The defendants denied that the claimant had a tenancy. They argued that, as any tenancy held by the claimant must have been acquired by way of assignment from her predecessors, since there had been no assignment or disposition in her favour, in writing and signed by the person conveying the alleged tenancy interest and by reason of the consequent non-compliance with section 53(1)(a) of the Law of Property Act 1925, any tenancy held by her predecessors had failed to pass to her and her occupancy must have been one of licensee. Further, any such tenancy must have been a tenancy at will, by reason of section 54(1) of the Law of Property Act 1925, because the terms of the claimant’s occupancy did not amount to a tenancy “at the best rent reasonably obtainable without taking a fine”, for purposes of section 54(2) of the Act. It was for the claimant to prove that the payment made in respect of her occupancy, each year, was the best rent reasonably obtainable for that occupancy without taking a fine.
Held: The claim was dismissed.
(1) On the evidence, the process by which the claimant came occupy the sites was designed to transfer to the claimant the Guild rights over the sites held previously by her predecessors and to procure the consent of the defendants to that transfer and her registration with the defendants as the person entitled to those rights. It was Guild rights and not any rights in land which were the subject of the relevant transfers. That was consistent with the approach adopted by and the understanding of the defendants.
(2) On the continuing assumption that the claimant’s predecessors were tenants, on the transfer of the Guild rights in each of the two sites to the claimant and upon her taking up her occupancy of each site, the tenancy held by her predecessor in respect of each site came to an end by way of a surrender by operation of law. Surrender by operation of law was an estoppel based doctrine and arose where the tenant of property acted, unequivocally, in a way which was inconsistent with the continuation of his tenancy and where that unequivocal conduct was coupled with unequivocal conduct by the landlord consistent only with the tenancy being at an end. The conduct of the claimant’s predecessors in transferring their Guild rights to the claimant and thereafter allowing her, as against each of them, the untrammelled use and occupancy of each site and to deal directly with the defendants as to her use of each site, was unequivocally inconsistent with their retention of any underlying rights of tenancy that they might previously have had in respect of each site.
(3) There was no doubt but that best rent, for purposes of section 54(2) of the 1925 Act equated to market rent. The defendants were entitled to require the claimant to prove the tenancy for which she contended and to prove, in so far as necessary, that that tenancy was at a market rent and did not take effect at will only. On the evidence, the charges which had been levied from time to time at the fair were at a market level, or so insignificantly below that level as to be de minimis. In any event, it was axiomatic at common law that, where parties had not expressly agreed the basis upon which land was occupied, the court would step in and fill the gap and would determine, from the conduct of the parties, whether the intention to be inferred from that conduct was the creation of a tenancy. If the true construction of the arrangements between the claimant and the defendants was that their intended effect was to create a periodic annual tenancy, the fact that, at the outset of those arrangements, the original grant in her favour had amounted to an oral, or parol, tenancy at less than the best rent, would not preclude that tenancy arising upon payment of the annual rent.
(4) The so-called high degree of control exercised over the site by the defendants did not, in itself, point in favour of a licence, or preclude exclusive possession, unless it was implicit in the exercise of that control that the defendants retained the right to come upon the sites at will. The question of exclusive possession arose between the landowner and the occupier and was not affected by the use that the public might be allowed to make of the land in question. However, the conditions of letting, read as a whole, applied in the context of a working fair, led to the conclusion that the arrangements between the defendants and the claimant did not give rise to a grant of exclusive possession. The only realistic conclusion to be drawn from the absence of any reservation of a right of access to any given site, in the proper exercise by the defendants of their powers and entitlements under the conditions of letting, was that such a reservation was not required because the defendants did not intend to exclude themselves from possession of any part of the fair, and did not do so.
(5) In all the circumstances, the occupancies took effect by way of licence. While there was no reason why such occupancies could not be periodic in nature and entitle the claimant, as a matter of contract, to return to the same site, the claimant’s occupancies were not of such a nature. Unless the application process was regarded as, in some sense, a matter of form not substance, the claimant had each year applied for and been granted a new permission to occupy and, in so doing entered into a new contract each year. In so doing, she must, of necessity and by a parity of reasoning with the process of surrender by operation of law, have, in entering into the new contract, discharged the old.
(6) The true source of the claimant’s so-called “permanency”, as occupant, each year, of the two sites lay in the fact that she had had Guild rights, binding upon other showmen (but not the defendants), and in the defendants’ acknowledged policy of allocating sites having regard to those rights. It was that policy and not any legal rights granted to the claimant by the defendants, in respect of sites at the fair that gave rise to the stability, or permanency, of the allocation arrangements made each year by the defendants. In the result, the claimant had no continuing legal rights, as against the defendants, and her status on those sites had never been any more than that of a licensee, occupying under a licence granted to her each year, under the application process.
(7) Consequently, the claimant’s monetary claims failed. As a licensee, she did not have the benefit of the implied covenant for quiet enjoyment upon which her monetary claims were said to be based. As a matter of law, she could have no claim, arising from the fact that her preferred attraction could not be contained within the sites, as allocated. Accordingly, it was not necessary to make any assessment of the quantum of damages that might have been payable had the monetary claims been made out.
Mark Warwick QC (instructed by Gordon Dadds) appeared for the claimant; Nicholas Grundy QC (instructed by the Head of Law and Governance) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Holland v Oxford City Council
