Home Page > Property Law Library > Residential tenancies > Licences

Home Page
Contact
Editorial Team

Anti-social behaviour
Assured tenancies
Assured shortholds
Boats
Housing disrepair claims
Homeless persons
Introductory tenancies
Licences
Notice to quit
Proceeds of crime
Rent Act 1977
Rent books
Right to buy
Secure tenancies
Tenant's notice to quit
Unlawful eviction

Current page






Licences

Alms house

Tenancy or licence

Watts v Stewart
[2016] EWCA Civ 1247

Summary

The Court of Appeal dismissed an appeal against an order for possession brought by the occupant of an almshouse on grounds including that she occupied under a periodic tenancy, which had not been terminated. It held that the occupiers of almshouses were licensees, not tenants, and their status as such did not give rise to a breach of ECHR art.14 when read with art.8.

Facts

The respondents were the trustees of a charity (T) whose main object was the provision of almshouse accommodation. T's governing instrument was a scheme of arrangement which provided, among other things, that the residents of the almshouses should be poor single women of not less than 50 years of age. The scheme also provided for the setting aside of the appointments of residents who, among other things, "persistently or without reasonable excuse either disregard[ed] the regulations for the residents or disturb[ed] the quiet occupation of the almshouses or otherwise behave[d] vexatiously or offensively".

The appellant (A) had been allocated the property in question pursuant to a letter of appointment dated 29 September 2004. The letter required her, among other things, to pay a "weekly maintenance contribution". In 2014, T served a notice to quit on her as a result of persistent anti-social behaviour on her part. In 2016, a possession order was made against her. The judge found, among other things, that she had not occupied the property as a tenant. A appealed to the Court of Appeal.

Issues

(1) Whether the appellant had a periodic tenancy of the property;
(2) Whether the Court had jurisdiction to decide the claim because the proceedings were "charity proceedings" within the Charities Act 2011 s.115(8) and no authorisation for them had been given by the Charity Commission or a Chancery High Court judge as required by s.115; and,
(3) Whether the occupants of almshouse accommodation were entitled to security of tenure by virtue of ECHR Article 14 when read with Article 8.

Decision

The Court Appeal dismissed the appeal. As to the above issues the Court held as follows.

(1) The appellant was not a tenant of the property. She had been granted a personal licence to occupy the property on the terms of the appointment letter, which did not grant legal exclusive possession to her, as evidenced by the following provisions in the letter:
  • the resident was not to be a tenant or have any legal interest in the almshouse;
  • the trustees had the right to require a resident to vacate her dwelling and move, either temporarily or permanently, to another almshouse;
  • visitors were not permitted to stay in an almshouse except with the consent of the trustees; residents should not vacate their dwellings for more than a total of 28 days in any one year without the prior consent of the trustees;
  • they should inform the trustees/warden if they would be away for more than a week at a time; further, the trustees could set aside a resident's appointment for good cause.
Moreover, the trustees 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 (see, Gray v Taylor [1998] 1 W.L.R. 1093).

(2) The proceedings were not "charity proceedings". Section 115(8) provided that the expression "charity proceedings" meant, among other things, "the court's jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes". These proceedings were not to do with the internal administration of the charity. They were for the possession of the property pursuant to the terms of a written contractual licence .

(3) The court would proceed on the assumption that the facts of the case fell within the ambit of art.8 for the purposes of engaging art.14. However, it was very doubtful that the appellant's status as an almsperson was a qualifying characteristic for the purposes of art.14. It was not necessary to reach a concluded view on that point, because any difference of treatment as between the occupiers of almshouses and the occupiers of other forms of social housing was objectively justified. In the context of almshouses, the exclusion of security of tenure had been in place for many years. Parliament had not required the grant of assured shorthold tenancies to almspersons. In Gray, the court had concluded that the grant of a tenancy would be inconsistent with the duty of the trustees to provide accommodation for deserving persons and that the relationship was one of licensor and licensee. Not only was that the correct characterisation as a matter of domestic law but it also fairly balanced the competing interests of the charity and the resident in a manner which would not be achievable if residents had the status of tenants.


Bruton tenancies

The basic rule

Where A grants a licence of a dwelling to B who in turn grants a tenancy to C, C has a tenancy as against his immediate landlord, B (Bruton v London Housing Trust [1999] UKHL 26; [2000] 1 AC 406).

Relationship between A and C

But does C have any rights against A if B's licence comes to an end? The issue often arises in the social rented sector.

Let us say that A is a local authority and owns a dwelling. The local authority grants a licence of the dwelling to B, a housing association; and under the licence allows it to use the dwelling as temporary housing accommodation. The housing association then grants an assured tenancy to C. Some time later A terminates B's licence and when C refuses to leave brings a claim for possession against C.

These were basically the facts in Kay v Lambeth London Borough Council [2004] EWCA Civ 926 and London Borough of Islington v Green [2005] EWCA Civ 56. In both cases a number of arguments were raised by C and rejected but the essential points are:
  • A person with a Bruton tenancy (C) does not have an interest in land binding on the licensor (A).

  • The fact that A knew that B would grant a tenancy did not of itself mean that B had acted as A's agent. Thus, A was not bound by the actions of B in granting the tenancy.
Peter Gibson LJ at para 29 in the second case, London Borough of Islington v Green:
    "The council of course contemplated that Patchwork [the housing association] would provide temporary housing accommodation and was content with that and, as we now know from the House of Lords' decision in Bruton, the circumstances of which are similar to those present here, tenancies may be created as between the parties to that tenancy, that is to say the person allowing the premises to be used by another for temporary housing accommodation and that other person so accommodated. But it is plain from the licence in the present case that the council was not giving Patchwork permission to create interests beyond the period of the licence (see in particular paragraph 4, providing for the licensee to ensure that the house was returned vacant to the council on the termination of the licence)."
Kay v Lambeth in the House of Lords

The Lambeth case went to the HL (Kay v London Borough of Lambeth [2006] UKHL 10) - the main issue relating to human rights. However, the Bruton tenancy point was also considered.

Facts

To put it shortly, Lambeth (A) had allowed a housing association (B) to grant tenancies to occupiers. The housing association initially had a licence. As against the housing association the occupiers (C) were "Bruton tenants" but as against Lambeth they had no rights.

Lambeth subsequently granted a lease to the housing association which was later terminated. It was now being argued that at the point in time when the housing association's lease came to an end the occupiers became tenants as against Lambeth in accordance with the principle that a surrender by an intermediate interest cannot determine an inferior interest.

Decision

The argument was rejected. Lord Scott:
    "But the Mellor v Watkins principle and the Pennell v Payne principle can have no relevance to a case in which a tenancy has been granted by someone without any estate in the land in question. The Bruton tenancies are all of that character. LQHT was, when it granted the Bruton tenancies, merely a licensee of Lambeth. (143)

    In my opinion, therefore, in agreement with Judge Cooke and the Court of Appeal, the appellants had no right under ordinary domestic law to retain possession of their respective properties after the termination of the 1995 lease. They had become, vis-a-vis Lambeth, the owner of their properties, trespassers with no right to remain." (148) (Emphasis added)

Back to top

If you have found this page useful, you may be interested in the following:

Options
Free Summaries £nil
Full Membership From £207 + VAT (1 year)