Landlord and tenant — Dwelling-house — Separate dwelling — Exclusive possession — Housing Act 1985 — Whether licence of bedroom and shared use of whole flat created secure tenancy
By an
agreement dated August 16 1991 the appellants agreed to grant the respondent a
licence to occupy, on a shared basis, a furnished flat; the respondent occupied
one of the bedrooms. Later in August 1991 a second person signed a similar
agreement and until June 1992 occupied a further bedroom. In July 1992 the
council gave notice requiring the respondent to give up possession of the flat.
In proceedings by the council to recover possession against the respondent, the
county court judge held that the respondent had a secure tenancy of the flat.
The council appealed relying on alternative contentions: (1) on the true
construction of the licence agreement the respondent was granted exclusive
possession of the bedroom he occupied, with associated rights to share the use
of the common room, kitchen, bathroom and separate wc. The bedroom could not be a separate dwelling, within the
meaning of section 79 of the Housing Act 1985, because it did not satisfy the
requirements of essential living facilities. Or (2) if the licence agreement
granted a right to share occupation of the whole of the flat, then the flat
cannot be treated as a dwelling for the purposes of the Housing Act 1985,
because neither the
It was impossible to identify any property, whether the flat or a part of the
flat, in respect of which both the conditions of essential living facilities
and exclusive possession are satisfied.
The following
cases are referred to in this report.
AG
Securities v Vaughan; Antoniades v Villiers
[1990] 1 AC 417; [1988] 3 WLR 1205; [1988] 3 All ER 1058; (1989) 57 P&CR
17; [1988] 2 EGLR 78; [1988] 47 EG 193, HL
Baker v Turner [1950] AC 401; [1950] 1 All ER 834; 66 TLR 780, HL
Westminster
City Council v Clarke [1992] 2 AC 288
This was an
appeal by the defendants, Westminster City Council, from a decision of Judge
Cotran in Central London County Court, in proceedings for possession against
the plaintiff, Milton Parkins.
Simon Berry QC
and Rupert Butler (instructed by Judge & Priestley, of Bromley) appeared
for the appellants; the respondent appeared in person.
Giving
judgment at the invitation of Kennedy LJ, CHADWICK LJ said: The
appellants (the council) are the owners of a block of flats at Canal Buildings,
Gatliff Road, London SW1. The respondent, Milton Parkins, went into occupation
of flat 1 in that block under the terms of a licence dated August 16 1991. The
licence was determined in 1992 in circumstances to which I shall refer. The
council’s claim for possession of flat 1 was dismissed by Judge Cotran, sitting
at Central London County Court, on September 27 1996. The judge held, in
effect, that Mr Parkins had a secure tenancy of the flat for the purpose of
Part IV of the Housing Act 1985. The council have appealed against that
decision to this court.
On November 20
1989 the council, through their financial management and personnel
subcommittee, considered a proposal that flats previously reserved for
occupation by council staff should be used to provide affordable housing for
teachers in schools for which they had responsibility as the local education
authority. The subcommittee noted that, in order to ensure that possession
could be obtained should a teacher leave the council’s employment, it would be
necessary for the flats to be occupied on a shared basis. Flat 1, Canal
Buildings, was one of the flats identified as available for the purpose.
Mr Parkins was
employed as a teacher at Westminster City School with effect from September 1
1991. That was a voluntary aided school. Mr Parkins’ employer was the governing
body of the school. Nevertheless, he was treated as being within the council’s
affordable housing scheme and an offer of shared accommodation of flat 1, Canal
Buildings, was made to him on that basis. He accepted that offer and the
arrangement was recorded in a licence agreement which he signed on August 16
1991. The licence agreement was in a standard form and contained the following
introductory words:
the Licensee
has accepted an offer of employment by the Corporation as a teacher and in
connection therewith the Corporation has agreed to grant the Licensee licence
to occupy on a shared basis temporary furnished housing accommodation to be
provided by the Corporation on the conditions hereinafter contained.
In that
context ‘the Corporation’ is Westminster City Council. As I have indicated, the
true position was that Mr Parkins’ employer was the governing body of the
school rather than the council. Each party knew that and, as the judge correctly
held, nothing turns on that mistake.
The operative
words of the licence are set out in clause 1:
1. The
Corporation hereby grants to the Licensee licence to occupy Flat 1, Canal
Buildings, Gatliff Road (hereinafter called ‘the Premises’) the occupancy of
the premises to be shared with other persons also similarly authorised by the
Corporation together with the
right to use (in common with all others entitled to the like right) the
furniture and equipment furnished by the Corporation (a list of which is set
out in the Schedule annexed hereto) together also with the right to use during
the subsistence of this licence (in common with all others entitled to the like
right) for the purpose of passage to and from the Premises the entrance hall
stairs passages and landings leading to the Premises from the 16th day of
August 1991 until the licence hereby granted is determined in manner
hereinafter provided …
Clause 2
required Mr Parkins to pay a licence fee, initially £173.33 per month. Clause 5
provided that the licence could be determined by either party on one month’s
notice in writing. That clause was subject to the provision in clause 6(c) that
the licence should determine forthwith on the date on which the licensee should
leave the service of the corporation or, in any event, at the end of one year
from the date of commencement, August 16 1991.
At the time
when the licence was granted, flat 1, Canal Buildings, comprised three rooms
used as bedrooms — and known as rooms 1, 2 and 3 — a sitting or common room, a
kitchen, a bathroom and a separate wc.
The schedule of furniture and equipment referred to in clause 1 of the licence
agreement and annexed thereto listed, and listed only, furniture and equipment
in room 3, the common room, the kitchen, the bathroom and separate wc.
The judge
found that Mr Parkins had been shown the flat on August 8 1991 by Miss Julia
Williamson, an employee of the council responsible for administering the
affordable accommodation scheme for teachers. At that time the flat was vacant,
the previous occupants having moved out at the end of July. Mr Parkins chose,
or was allocated, room 3 as his bedroom. Miss Christine Mukasa, another teacher
employed by the council, was shown around at the same time. She chose room 1 as
her bedroom.
On August 16
1991 Mr Parkins signed the licence agreement at Miss Williamson’s office. He
was given keys to the flat and to room 3. He moved into the flat with some of
his own furniture on that day. Shortly thereafter, on August 30 1991, Miss
Mukasa signed a licence agreement in the same standard form, but with a
schedule which listed the furniture in room 1 rather than room 3. She moved in
on the same day, August 30. The position, as found by the judge, was that, from
the end of August 1991 until Miss Mukasa moved out of the flat on June 27 1992
to alternative accommodation, Mr Parkins had room 3 as his bedroom; Miss Mukasa
had room 1 as her bedroom; they shared the rest of the flat, that is to say,
the sitting room, kitchen, bathroom and lavatory; and room 2 remained empty,
save to the extent that it was used from time to time for casual visitors or as
a study.
Mr Parkins was
dismissed from his employment as a teacher on April 13 1992. On May 21 1992 the
decision to dismiss him was upheld by the governors’ appeal committee of United
Westminster Schools. On July 23 1992 the council gave notice requiring Mr
Parkins to deliver up possession of the flat and premises, described in the
notice to quit as ‘Flat 1, Canal Buildings, Gatliff Road, London SW1 now held
from the council as licensee’ at the expiration of four weeks. He did not do
so.
Mr Parkins had
commenced proceedings in the county court against the governors of the school
on April 8 1992, alleging unfair treatment and racial discrimination. The
council were fourth defendants to those proceedings. The council’s claim for
possession was made by way of amended counterclaim served in those proceedings
on September 7 1992. On any basis, the contractual licence granted on August 16
1991 had determined by that date.
Part IV of the
Housing Act 1995 contains provisions which give security of tenure to the
tenants or licensees of a local authority in circumstances in which the tenancy
or licence satisfies the conditions in section 79 of the Act. The section is in
these terms so far as material:
79. — (1) A tenancy under which a dwelling-house is let as a separate
dwelling is a secure tenancy at any time when the conditions described in
sections 80 and 81 as the landlord condition and the tenant condition are
satisfied …
(3) The
provisions of this Part apply in relation to a licence to occupy a
dwelling-house (whether or not granted for a consideration) as they apply in
relation to a tenancy.
For the
purposes of section 79 and the other sections in Part IV of the Housing Act, a
dwelling-house may be a house or part of a house: see section 112(1) of that
Act. There is no doubt in the present case
‘tenant condition’ set out at section 81 is:
The tenant
condition is that the tenant is an individual and occupies the dwelling-house
as his only or principal home; or, where the tenancy is a joint tenancy, that
each of the joint tenants is an individual and at least one of them occupies
the dwelling-house as his only or principal home.
There is no
suggestion in the present case that the rights of Mr Parkins and Miss Mukasa
together constituted a joint tenancy — compare AG Securities v Vaughan
[1990] 1 AC 417* in the speech of Lord Bridge, at pp453H–454D. Nor could there
be any argument that the separate licences to Mr Parkins and Miss Mukasa were a
sham, as was held in the second of the two appeals considered by the House of
Lords (Antoniades v Villers) on that hearing.
*Editor’s
note: Also reported at [1988] 2 EGLR 78
Section 82(1)
of the Act provides that:
(1) A secure
tenancy which is either —
…
(b) a tenancy
for a term certain but subject to termination by the landlord, cannot be
brought to an end by the landlord except by obtaining an order of the court for
the possession of the dwelling-house …
Section 83(1)
precludes the court from entertaining proceedings:
(a) … for the
possession of a dwelling-house let under a secure tenancy …
unless the
landlord has served on the tenant a notice complying with the provisions of
this section.
It is common
ground that no section 83 notice was served in the present case. Accordingly,
it is accepted by the council that if Mr Parkins occupied flat 1, Canal
Buildings, or any part of it under a secure tenancy, then no order for
possession could have been made by the county court and this appeal must
necessarily fail.
The first
question, therefore, is whether the effect of the licence agreement of August
16 1991 is that Mr Parkins was given the right to occupy the flat or some part
of it as a dwelling-house. If so, then there is a second question; whether the
property which was to be occupied as a dwelling-house — whether that be the whole
of the flat or only some part of the flat — is property let as a separate
dwelling for the purposes of the Act. The expression ‘a dwelling-house let as a
separate dwelling’ which appears in section 79(1) of the Housing Act 1995 is
borrowed from the Rent Acts — under which security of tenure was given to
tenants of private landlords. The meaning of that expression in the context of
the Housing Act 1985 was considered by the House of Lords in Westminster
City Council v Clarke [1992] 2 AC 288. Lord Templeman, in a speech
with which the other members of the House agreed, said, at pp298H–p299B:
Under the
Rent Acts, in order to create a letting of part of a house as a separate
dwelling there must be an agreement by which the occupier has exclusive
possession of essential living rooms of a separate dwelling house. Essential
living rooms provide the necessary facilities for living, sleeping and cooking.
Thus a bed-sitting room with cooking facilities may be a separate dwelling
house even though bathroom and lavatory facilities might be elsewhere and
shared with other people: see Neale v Del Soto [1945] KB 144; Cole
v Harris [1945] KB 474 and Goodrich v Paisner [1957] AC
65, 79.
To those
authorities might be added the decision of the House of Lords in Baker v
Turner [1950] AC 401: see in particular p414 in the speech of Lord
Porter where the principles are collected.
Applying that
test to the physical characteristics on flat 1, Canal Buildings, it appears to
be plain that the flat as a whole is capable of satisfying the requirement of
essential living facilities. It has the necessary facilities for living,
sleeping and cooking. It is equally plain that room 3, which Mr Parkins
occupies as his bedroom, is not capable of satisfying that requirement on its
own. It has no facility for cooking.
Lord Templeman
went on to consider, in Westminster City Council v Clarke,
whether the requirement that the occupier must have exclusive possession — a
requirement established under the Rent Acts — had survived the enactment of
section 39(3) of the Housing Act 1985 and its statutory predecessor, section 48
of the Housing Act 1980. He rejected the submission that an occupier could be a
secure tenant under the Housing Act 1985 even though he was not granted
exclusive possession of any property capable of satisfying the requirement of
essential living facilities. Lord Templeman said, at p299C–H:
This
submission [that is the submission that exclusive possession was not necessary]
would confer security of tenure on a lodger and on a variety of licensees and
is contrary to the language of section 79(3) which applies the provisions of
Part IV of the Act to a licence ‘as they apply in relation to a tenancy.’ Part
IV only applies to a tenancy of a dwelling house let as a separate dwelling,
namely with exclusive possession. Part IV therefore applies to a licence which
has the same characteristics. A tenant or licensee can only claim to be a
secure tenant if he has been granted exclusive possession of a separate
dwelling house.
The
predecessor of section 79(3) of the Act of 1985 was section 48 of the Housing
Act 1980 which provided that where under a licence
‘the
circumstances are such that, if the licence were a tenancy, it would be a
secure tenancy then … this Part of this Act applies to the licence as it
applies to a secure tenancy.’
The result of
section 48 of the Act of 1980 was that, whether the occupier was a tenant or a
licensee, he must be granted exclusive possession in order to become a secure
tenant. The Court of Appeal so held in Family Housing Association v Miah
(1982) 5 HLR 94, and Royal Borough of Kensington and Chelsea v Hayden
(1984) 17 HLR 144.
The Rent Acts
do not apply to a licence and section 48 of the Act of 1980 was enacted at a time
when some private landlords were granting exclusive possession of residential
accommodation at a rent but in the form of a licence. Section 48 of the Act of
1980 made clear that such a licence created a secure tenancy.
Lord Templeman
went on, at p300B–D:
In my opinion
section 79(3) did not alter the law. The Act of 1985 was an enactment which
consolidated various statutes including the Act of 1980 and gave effect to
certain recommendations of the Law Commission. Those recommendations did not
relate to section 48 of the Act of 1980. Therefore section 79(3) was a
consolidating measure and in redrafting section 48 of the Act of 1980 in the
form of section 79(3) of the Act of 1985 the draftsman had no power to alter
the law. In my opinion, on the true construction of section 48 of the Act of
1980 and on the true construction of section 79(3) of the Act of 1985, whether
those sections be considered together or separately a licence can only create a
secure tenancy if it confers exclusive possession of a dwelling house.
With these
principles of law in mind, the council puts their case in the alternative.
First, it is said that on the true construction of the licence agreement of
August 16 1991, Mr Parkins was granted exclusive possession of room 3 with
associated rights to share the use of the common room, kitchen, bathroom and
separate wc. Room 3 cannot be
treated as a dwelling-house let as a separate dwelling because it does not
satisfy the requirement of essential living facilities. In the alternative, if,
on its true construction, the effect of the licence was to grant Mr Parkins a
right to share occupation of the whole of the flat, then the flat cannot be
treated as a dwelling-house let as a separate dwelling for the purposes of the
Act, because neither Mr Parkins nor anyone else has a right to exclusive
possession of the flat.
In my view,
those contentions are unanswerable. It is impossible to identify any property,
whether the flat or a part of the flat, in respect of which both the conditions
of essential living facilities and exclusive possession are satisfied.
The judge
found that on the true construction of the licence agreement of August 16 1991,
Mr Parkins had a licence to occupy the whole of the flat. In my view, that was
a correct finding as a matter of construction. But he went on to find that that
licence gave him a secure tenancy. He distinguished the observations of Lord
Templeman in Westminster City Council v Clarke (supra) in
the following passages:
Mr Berry’s
argument then proceeds thus. He says that the House of Lords’ case of Westminster
City Council v Clarke … established the principle, as he calls it,
that under s79(3) a licence can only create a secure tenancy if it confers
exclusive possession in a dwelling, and he refers to what was said by Lord
Templeman … [in] the report.
With respect,
I do not think the Clarke case establishes any such principle. One must
look at the very special and peculiar facts of that case, and very special
peculiarity in the licence granted to the defendant, Mr Clarke.
The judge read
from the headnote in Clarke and went on:
The first
thing that one can see in the Clarke case is that it is a far cry from
the facts of this case, and the terms of the licence in this case which does
not say that it does not give Mr Parkins the right of exclusive possession of
any particular accommodation. Mr Berry refers to clause 3(k) of the licence
agreement which says that the licensee agrees not to impede or interfere with
the Corporation’s rights of possession and control over the premises. This,
with respect, again I repeat is a far cry from what was said of the licence in
the Clarke case. It is not the same as not conferring exclusive
possession of anything in the flat for, if so, the grant of the licence in
clause 1 to occupy flat 1 to be shared with others would become meaningless.
Finally, the
fact that the Clarke case establishes no principle of the kind attempted
to be enunciated by Mr Berry, and depends on its own facts, is stated by Lord
Templeman himself in the last paragraph of his judgment.
The
peculiarity about the Clarke case — which Lord Templeman was concerned
to emphasise — was that the room in the hostel which Mr Clarke had a licence to
occupy (room E) was a bed-sitting-room with facilities capable of satisfying
the essential living facilities requirement. The question therefore was whether
or not a room with that characteristic was the subject of a right to exclusive
occupancy — as, usually, it would be. But, the particular nature of the hostel
arrangements in that case persuaded the House of Lords that there was no right
to exclusive occupation of room E. Lord Templeman was careful to point out that
that was a very peculiar arrangement. A licence to occupy a single
bed-sitting-room would normally carry with it a right to exclusive occupation.
That proposition has only to be stated to be seen to be obvious. But Lord
Templeman clearly did hold that exclusive possession was the test; and that, in
the absence of exclusive possession, there could be no secure tenancy within
the Housing Act 1985, whether that arose under a tenancy strictly so called or
a licence.
The judge went
on to say:
What happens
next is that there is a further non-exclusive right to occupy and use other
areas or places in the flat. By no stretch of the imagination can it be said,
even if there be a principle enunciated in the Clarke case, that the
total rights in the flat (exclusive and non-exclusive) can be equated to a room
in a hostel where you could be moved at will from time to time by the Council to
a situation where a person has a bedroom all to himself and other rights in the
flat.
In my
judgment, the judge is there confusing the point that was in issue in the Clarke
case, namely that there was a room which was capable of being a separate
dwelling, but which, for the particular reasons in that case, was not the
subject of exclusive possession — with the position that he was addressing,
namely a flat which was let on a shared basis. The judge held:
In the result
… that (1) the dwelling house in the licence agreement was Flat 1, Canal
Buildings, (2) that the flat was let as a separate dwelling and (3) that
consequently it is a secure tenancy under s79(1) read with s79(3) of the
Housing Act of 1985.
That was a
holding that was simply not open to him in the light of the principles
explained by Lord Templeman in Clarke. The licence agreement made it
clear that the right to occupy flat 1 was a right to be shared with other
persons also similarly authorised by the corporation. A right of that nature
was considered by the House of Lords in AG Securities v Vaughan
[1990] 1 AC 417 to which I have already referred: see in particular at
pp470G–471B. It is not a right to exclusive possession. The premises occupied
under such a right cannot be occupied as a separate dwelling.
Mr Parkins,
who has argued the appeal before us in person, has raised three other points
which do not appear to have been before the judge in the county court. First,
he seeks to rely on the provisions in section 3 of the Protection from Eviction
Act 1977 and on two notices, dated respectively August 6 and 26 1992, which he
served on the council. The Protection from Eviction Act makes it unlawful in
certain circumstances for a landlord to seek to enforce a right to recover
possession other than by court proceedings. It has no application in the
present case because these landlords are seeking to enforce their right to
possession through court proceedings. The 1977 Act cannot, in my view, afford
any assistance to Mr Parkins.
Second, Mr
Parkins points to the words ‘at any time’ which appear in section 79(1) of the
Housing Act 1979. He submits that if one finds that ‘at any time’ the flat was
being used as a separate dwelling — because, for example, only Mr Parkins was
there — then that is sufficient to bring the flat within section 79(1). In my
view, that submission is misconceived. The words ‘at any time’ in section 79(1)
qualify the expression following those words — that is to say, the expression
‘when the conditions described in Section 80 and Section 81 … are satisfied’.
Section 79(1) envisages that, from time to time, the facts in relation to those
conditions may thereupon change and that if they do change, then the tenancy
may become or cease to be a secure tenancy. The words ‘at any time’ do not
qualify the phrase ‘let as a separate dwelling’. That is a state of affairs
which must be determined under the terms of the agreement for letting or the
licence agreement. Whatever rights Mr Parkins had as a result of the August 16
1991 agreement, those rights were not altered by the fact that Miss Mukasa was
or was not in the premises for the time being. The right under the licence
agreement was a right to occupy shared accommodation with others. The council
had the right to introduce into the premises, at any time, a second or third
person to share that accommodation with Mr Parkins. It is that which is
inconsistent with the exclusive possession needed to bring the licence within
section 79.
Third, Mr
Parkins seeks to rely on an order made on November 7 1996 by Judge Cotran in
Central London County Court, under which the judge directed that the council
should receive rent from Mr Parkins forthwith. Mr Parkins submits that, having
paid rent under that order, whatever may have been the position in 1991 and
1992, he is now a tenant of premises of which he has exclusive possession.
There is no substance in that point. The order of November 7 1996 provides,
expressly, that the payment and receipt of rent shall be without prejudice to
the council’s appeal and without prejudice to its contention that Mr Parkins is
a trespasser and neither a tenant nor a licensee. In the face of the terms of
the order itself, it cannot be suggested that a tenancy has arisen as a result
of the payment of rent since November 1996.
For those
reasons this appeal should be allowed.
JUDGE and KENNEDY
LJJ agreed and did not add anything.
Appeal
allowed with costs.
