Occupation of land – Lease or licence – Almshouses – Respondent allocated accommodation in flat as beneficiary of almshouse charity – Respondent charity trustees later claiming possession on grounds of anti-social behaviour – Possession order made – Whether respondent occupying under lease or licence – Whether finding of licensee status amounting to discrimination contrary to Article 14 of European Convention on Human rights read with Article 8 – Appeal dismissed
The respondents were the trustees of a registered charity, the principal object of which was the provision of almshouse accommodation to poor single women pursuant to the terms of the charity’s scheme of arrangement. The charity had three properties containing a total of 14 residential flats. The appellant was appointed as a beneficiary of the charity and was allocated almshouse accommodation in one of the flats.
The letter of appointment provided for the payment of a monthly “rent” and also made various references to the “tenancy”. However, it also set out the regulations that were to apply to residents, one of which specifically stated that neither the resident, nor any relation of hers, would be a tenant of the charity or have any legal interest in the almshouse.
In August 2014, the respondents served a notice to quit on the appellant, requiring her to vacate the flat by mid-September. It then brought proceedings for possession of the flat. The county court judge determined, on a trial of preliminary issues, that the appellant occupied the property as a licensee, not a tenant. She further found that the appellant did not have a defence based on discrimination compared with other occupiers of public sector and social housing accommodation, in breach of Article 14 of the European Convention on Human Rights, read with her right to respect for her home under Article 8.
At a subsequent trial, the judge found that the appellant had acted in an anti-social manner and in breach of the terms of the appointment letter, that she had continued to do so despite being given numerous warnings about her behaviour and the state of her flat, and that she was causing a disturbance to her neighbours. The judge found that the respondents’ decision to terminate the appellant’s appointment was a reasonable one and that the charity, acting through the respondents, owed no fiduciary duty to the appellant.
The judge further held that the proceedings were not “charity proceedings”, within section 115 of the Charities Act 2011, and therefore did not require the authorisation of the Charity Commission under that Act. She ordered the appellant to give up possession and to pay damages in respect of her occupation until possession was delivered up.
The appellant appealed. Various interested parties made submissions on the appeal, which raised issues that were relevant to the status of a large number of almshouse residents.
Held: The appeal was dismissed.
(1) The appellant did not have exclusive legal possession of her flat, such as was necessary for a tenancy to arise. There was a distinction between a legal right of exclusive possession, on the one hand, and a personal right of exclusive occupation, on the other: Radaich v Smith (1959) 101 CLR 209 and Street v Mountford [1985] AC 809; [1985] 1 EGLR 128 applied. Legal exclusive possession entitled the occupier to exclude all others, including the legal owner, from the property. Exclusive occupation might, or might not, amount to legal possession. If it did, the occupier was a tenant. If it did not, the occupier was not a tenant and occupied in some different capacity.
The appointment letter did not grant legal exclusive possession to the appellant, notwithstanding its references to “rent” and to the “tenancy”. Whether an occupier was a licensee or a tenant was not necessarily determined by the labels or language used by the parties. It turned on the intention of the parties having regard to all the admissible evidence. The references in the appointment letter to a tenancy and to rent were due to the fact that the respondents were lay volunteers. More importantly, there were express provisions in the appointment letter that plainly pointed away from the grant of legal exclusive possession and a tenancy. They included the specific statement that the resident should not be a tenant or have any legal interest in the almshouse, along with other provisions such as those: (i) giving the respondents the right to require a resident to vacate his or her dwelling and move, either temporarily or permanently, to another almshouse belonging to the charity; (ii) prohibiting visitors from staying in an almshouse except with the consent of the respondents; (iii) providing that residents should not vacate their dwellings for more than a total of 28 days in any one year without the prior consent of the respondents and should inform the respondents/warden if they would be away for more than a week at a time; and (iv) empowering the respondents to set aside a resident’s appointment for good cause, such as in the case of serious misconduct or a breach of the regulations.
(2) There was no question of the respondents trying artificially to colour the appointment letter as a licence rather than a tenancy in order to disguise the true nature of the relationship. The respondents could only properly discharge the trusts of the charity, which limited its objects to those in need, hardship or distress, if a personal revocable licence was granted, which could be revoked if, for example, the occupier became wealthy and therefore ceased to meet the qualifications under the scheme of arrangement.
(3) The appellant’s occupation as a beneficiary of the charity could not be construed as that of tenant at will of the trustees. The status of a beneficiary occupying trust property would depend on the terms and conditions on which the occupation was permitted. In the instant case, the terms on which the appellant was permitted to occupy the property excluded the grant of legal possession. There was no scope in those circumstances to infer the grant of a tenancy at will. What was granted to the appellant was a personal licence to occupy the flat on the terms of the appointment letter: Gray v Taylor [1998] 1 WLR 1093; [1998] PLSCS 115 considered.
(4) The judge had correctly found that the possession proceedings were not “charity proceedings” within section 115 of the 2011 Act. The expression “charity proceedings” was defined to mean either the court’s jurisdiction with respect to charities or its jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes: see section 115(8). It was not asserted that the proceedings fell into the former category and the appellant could not succeed in her contention that the latter applied. The proceedings were not to do with the internal administration of the charity, but instead were for possession of the flat pursuant to the terms of a written contractual licence: Rendall v Blair (1890) 45 Ch D 139 considered. Furthermore, there had been no appeal against the judge’s finding that the respondents did not owe fiduciary duties to the appellant.
(5) The appellant had conceded that the charity was not a public authority within section 6 of the Human Rights Act 1998. In those circumstances, the possession proceedings did not give rise to any potential actionable interference with the appellant’s Article 8 rights, viewed on their own: McDonald v McDonald [2016] UKSC 28; [2016] 3 WLR 45; 2016] PLSCS 169 applied.
Nor did the removal of the appellant infringe her Convention rights under Article 14, considered in conjunction with Article 8, on the ground that it would amount to discrimination against her on the ground of a protected characteristic. The better view was that the appellant’s status as an almsperson was not a qualifying characteristic for the purposes of Article 14. The fact that the appellant was resident in an almshouse was a matter of choice on her part. It was not an innate characteristic but one which had been acquired. There was no evidence before the court as to the factors or qualities that were said to be common to all residents of almshouses, so as to permit the court to conclude that residence in an almshouse was a characteristic so central to a person as to attract the protection of Article 14. In any event, the appellant could not show that any differential treatment suffered by almspersons was not justified. It was a proportionate means of achieving a legitimate aim. The legislation concerning residential tenancies had involved a process of balancing and rebalancing of the respective interests of owners and occupiers of property. In the context of almshouses, the exclusion of security of tenure for almspersons had been in place for many years and parliament had not required the grant of assured shorthold tenancies to almspersons. The characterisation of the appellant’s status as that of a licensee fairly balanced the competing interests of the charity and the resident in a manner that would not be achievable if residents had the status of tenants. According security of tenure to the almspersons would be inconsistent with the performance by the respondents of their duties under the scheme of arrangement, because it would be impossible to ensure that only qualifying persons occupied the almshouses.
Mark Wonnacott QC, Toby Vanhegan and Riccardo Cazavara (instructed by ARKrights Solicitors, of Watford) appeared for the appellant; Stephen Hockman QC and Nicholas Ostrowski (instructed by Gullands Solicitors, of Maidstone) appeared for the respondents; Oliver Jones (instructed by the Government Legal Department) made written submissions for the first interested party, the secretary of state for the Department of Communities and Local Government; Chris Willis Pickup, head of litigation at the Charity Commission for England and Wales, made written submissions for the commission as the second interested party; Alex de Jongh, solicitor, of Bates Wells Braithwaite, made written submissions for the third interested party, the National Almshouse Association.
Sally Dobson, barrister
Click here to read the transcript of Stewart and others v Watts.
