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Marian Dahir Mohamed v Barnet London Borough Council [2019] EWHC 1012 (QB)

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29th October 2019

Summary

Accommodation granted to the defendant pursuant to the claimant’s duties under the Children Act 1989 did not create a secure tenancy because the lease provided for vacant possession to be granted on written or verbal notice. The exemption from security of tenure under Schedule 1 para 6 (b) the Housing Act 1985 applied and the defendant did not enjoy security of tenure.

Facts

The defendant was found to be intentionally homeless by the claimant and accordingly was owed only limited duties under Part VII of the Housing Act 1996, however the claimant accommodated the applicant pursuant to its duties under the Children Act 1989.

The claimant granted the defendant a license of what was described as temporary accommodation with a nightly charge, the license provided for the defendant to give vacant possession on written or verbal notice or by notice to quit. The claimant served notice to quit on the defendant in February 2018.

The claimant itself only held a short lease of the premises let to the defendant, the claimant rented the property from a private landlord for the purpose of providing temporary accommodation, that agreement had been for an initial period of 12 months expiring in 2016 and thereafter from month to month.

Issues

Whether the license was excluded from security of tenure by operation of Paragraph 6 (b) of Schedule 1 to the Housing Act 1985.

First instance

His Honour Judge Luba QC held that the exclusion from security of tenure in paragraph 6 of Schedule 1, Housing Act 1985 applied. The property had been leased to the claimant with vacant possession for use as temporary accommodation, the superior landlord was not capable of granting secure tenancies and the claimant had no other interest in the property.

The remaining requirement was 6 (b), that the terms on which the property has been leased include provision for the lessor to obtain vacant possession from the landlord on the expiry of a specified period or when required by the lessor.

His Honour Judge Luba QC held that on its correct construction the agreement between the superior landlord and the local authority contained provision for the superior landlord to obtain vacant possession as either party could give notice to determine the agreement and that all tenancies for a finite period rested on the premises that vacant possession will be given at the end of a term.

Decision on appeal

His Honour Judge Luba QC held that the exclusion from security of tenure in paragraph 6 of Schedule 1, Housing Act 1985 applied. The property had been leased to the claimant with vacant possession for use as temporary accommodation, the superior landlord was not capable of granting secure tenancies and the claimant had no other interest in the property.

The remaining requirement was 6 (b), that the terms on which the property has been leased include provision for the lessor to obtain vacant possession from the landlord on the expiry of a specified period or when required by the lessor.

His Honour Judge Luba QC held that on its correct construction the agreement between the superior landlord and the local authority contained provision for the superior landlord to obtain vacant possession as either party could give notice to determine the agreement and that all tenancies for a finite period rested on the premises that vacant possession will be given at the end of a term.

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