Agreements relating to flat — Two separate agreements — Payments divided between two parties — Whether lease or licence — Whether obligation to share with any party — Whether joint tenancy — Occupier’s appeal dismissed
In 1984 the respondents, the owners of 179 Southgate Road, London N1, advertised the top-floor flat as a flat for two people to share. The appellant and a Miss Guile each signed an agreement in identical form. The agreements, based on that approved in Aldrington Garages Ltd v Fielder ((1979) 37 P & CR 461), were described as licences; clause 1 provided: “the Owner grants to the Licensee the right to use in common with others who have been granted the like right the rooms on the second floor …”. Under the agreements the appellant and Miss Guile each paid a deposit and were obliged to pay a separate and equal payment.
In April 1986 Miss Guile left the flat, and the appellant’s offer to pay her moity of the monthly payment was rejected by the respondents. Their claim for an order of possession of the flat was granted by His Honour Judge Honig in the Clerkenwell County Court (November 26 1987) on the ground that the appellant had no more than a licence that had been properly determined.
Held The appellant’s appeal was dismissed.
The agreements must be construed against the factual matrix at the time of the transactions. The respondents were aware that the two occupiers were to live together. It followed that clause 1 did not reserve to the respondents the right to impose on the appellant or Miss Guile a substitute co-occupant during the currency of the agreements; much clearer terms would be required. The agreement conferred on the appellant the right to exclusive occupation of the flat in common only with Miss Guile.
Although the two agreements operated to confer on the appellant and Miss Guile unity of possession, title and time, they did not confer unity of interest. Unity of interest imports the existence of joint rights and joint obligations; the provisions for payments in the agreements imposed obligations on each party to pay no more than the monthly sum stated in each agreement. As a consequence of these provisions for payments, the agreements were incapable in law of creating a joint tenancy, because the monetary obligations of the two parties were not joint obligations and there was accordingly no complete unity of interest. There was no joint tenancy.
Andrew Nicol (instructed by Bindman & Partners) appeared for the appellant; and Norman Primost (instructed by Alan Ferster & Co) appeared for the respondents.
