Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

5.Termination by the tenant

[25.70] A tenant is entitled to quit at the end of any fixed term, but he must give notice to quit if his tenancy is periodic, the total period of notice being at least four weeks.382 These restrictions can be avoided by an agreed383 surrender.

6.Limited residential security

[25.71] Even if a residential tenancy is not a shorthold, security of tenure is very often limited.384 The Law Commission is working towards creating a universal form of short term tenancy.385 In the mean time there is a confusing mess of cases where security is limited. In the private sector, for example:

occupation of accommodation that is not self-contained;386 accommodation in a house shared with a resident landlord; luxury property;

property without residential use;387 company lets;

property required for an owner occupier; holiday dwellings and out of season lets; and

lets by educational institutions to students and vacation letting.

Whilst in the public sector, for example:

introductory tenants in their first year;388 and property affected by reconstruction work.

Even in these cases the Protection from Eviction Act 1977389 generally guarantees due process, that is the requirement for notice and court proceedings before repossession is carried out, and protection of occupiers against harassment intended to force them out.390 Due process does not apply to “excluded tenancies and licences”391 – including resident landlord tenancies, temporary refuges, holiday accommodation, gratuitous arrangements, and licences in some publicly funded hostels.

382Protection from Eviction Act 1977 s 5.

383Laine v. Cadwallader (2001) 33 HLR 36, CA.

384P Sparkes, NLT ch 6.

385Reform of Housing Law: A Scoping Paper (Law Com, March 2001); R Carnwath [2001] LT Rev 3; M Partington [2001] 04 Legal Action 10.

386Uratemp Ventures v. Collins [2001] UKHL 43, [2002] 1 AC 301; P Sparkes NLT 166–170.

387Eg a head tenant who has sub-let the whole: Ujima H Ass v. Ansah (1998) 30 HLR 831, CA.

388HA 1996 s 124–125; Manchester CC v. Cochrane (1999) 31 HLR 810, CA. This scheme has survived human rights challenges; see above [5.51].

389S 3(2B) as amended by HA 1980 s 30.

390Protection from Eviction Act 1977 s 1(3) as amended by HA 1988 ss 28–29 (damages increased); Jones v. Miah (1992) 24 HLR 578, 588–591, Dillon LJ; Wandsworth LBC v. Osei-Bonsu [1999] 1 WLR 1611, CA.

391Protection from Eviction Act 1977 s 3A, inserted by HA 1988 s 31; Brillouet v. Landless (1995) 28 HLR 837, CA.

M. LICENCES

[25.72] Residential security of tenure applies to self-contained residential accommodation which “is let”.392 Licensees are excluded from all protection. Lease/licence litigation took off against the backdrop of the Rent Acts, where on one side there was “life-long” security and fair rents and on the other virtually immediate eviction. The pressure driving it has been released by the general practice of granting shortholds in the private sector, but a trickle of old cases is still reaching the courts as well as a steady stream of cases concerning business security of tenure.393

1.Exclusive possession

[25.73] Street v. Mountford394 decides that the acid test for the existence of a tenancy is the presence or absence of exclusive possession.395 Given that, an occupier is a tenant, whereas without it he is merely a licensee. This prevents a landlord from granting rights to self-contained residential accommodation with one hand and with the other denying the occupier the status of a tenant. Earlier Court of Appeal decisions attached importance to the intention of the parties, allowing evasion of the Rent Acts by expression of the intention to do so. Lord Templeman396 reasserted orthodox doctrine in forceful terms laying down the three essential indicia of a tenancy:

(1)a grant of exclusive possession,

(2)for a term,

(3)at a rent.

Of these, the first is most fundamental.

In Street v. Mountford, the landlord was a solicitor who entered into an agreement with a Mrs Mountford giving her the right to occupy two furnished rooms in Boscombe for £37 a week. Since the accommodation was self-contained, and she did not have to share it with anyone else, it was conceded in the Lords that Mrs Mountford did have a right to exclusive possession of the flat. She had a weekly tenancy and paid a rent. This entitled her to seek registration of a Rent Act 1977 fair rent.397 The written agreement she signed stated that “this personal licence is not assignable” demonstrating that Street’s subjective intention was to create only a licence, and she also signed a statement recognising that she would have no Rent Act protection. But subjective intention was irrelevant, and the test for exclusive

392RA 1977 s 1; HA 1988 s 1; HA 1985 s 79.

393The position is different because protection does not attach to short-term arrangements and business security can be excluded: P Sparkes NLT, 551–558; JA Pye(Oxford) v. Graham [2002] UKHL 30, [2002] 3 All ER 865, [57], Lord Browne-Wilkinson; National Car Parks v. Trinity Development Co (Banbury) [2001] EWCA Civ 1686, [2001] 2 EGLR 43, Ch D.

394[1985] AC 809, HL; S Anderson (1985) 48 MLR 712; S Tromans [1983] CLJ 351; R Street [1985] Conv 328, HL; S Bridge [1986] Conv 344, HL; AJ Waite (1987) 50 MLR 226.

395It also tests whether a sub-lease has been granted: Brent LBC v. Cronin (1997) 30 HLR 43, CA. However this is not quite a litmus test, because there are some exclusive licences; see below [25.83].

396[1985] AC 809, 816G.

397P Sparkes NLT, 227–239.

possession is substantive.398 Street v. Mountford was an easy case, decided unanimously in favour of Mrs Mountford.

Single occupiers are either tenants or lodgers,399 though the true touchstone remains exclusive possession.400 A licensee escapes liability to rating.401

2.Possession between landlord and tenant crucial

[25.74] The test for the grant of a lease is applied between the putative landlord and tenant. An estoppel arises between those two parties if the landlord does not in fact have power to grant a tenancy.402 This orthodox principle was applied in an extreme way in Bruton v. London & Quadrant Housing Trust.403 Lambeth LBC granted a licence of Oval House in Brixton to the Trust, on terms which precluded the grant of exclusive possession to any occupier. But, in fact, the trust did grant exclusive possession of Flat 2 to Bruton. Temporary accommodation was given in a property earmarked for redevelopment to a person who clearly understood that his occupation was temporary, but it must be remembered that the proposals had long since been dropped and that Bruton had been forced to live in inadequate damp conditions for six years.

3.Rights crucial

[25.75] Exclusive possession is the right to exclude all others from the property, especially the landlord.404 Undisturbed occupation for many years may not carry the right to insist that it should continue. Thus, in Shell-Mex & BP v. Manchester Garages,405 commercial occupation of a filling station for four years was quite consistent with the owner’s right to interrupt that occupation, and the same principle applies to residential property. Limited rights of access – perhaps to enter to view the state of repair of the property406 – do not affect the tenant’s exclusive possession and indeed reemphasise it, as do forfeiture clauses.407

398J Hill (1996) 16 LS 200.

399[1985] AC 809, 817H–818A; Monmouth BC v. Marlog (1994) 27 HLR 30, CA.

400Brooker Settled Estates v. Ayers (1987) 54 P & CR 165, CA; AG Securities [1990] 1 AC 417, 459G–460A; Aslan v. Murphy (No 1) [1990] 1 WLR 766, 770F–G, Lord Donaldson MR.

401Croydon LBC v. Maxon Systems Inc (London) [1999] EGCS 68, Jowitt J.

402Megarry & Wade (6th ed), [14.097–14.101].

403[2000] AC 406, HL; S Murdoch [1999] 30 EG 90; D. Rook [1999] Conv 517; S Bright (2000) 116 LQR 7; M Dixon [2000] CLJ 25; P Routley (2000) 63 MLR 424; M Pawlowski [2002] Conv 550; Megarry & Wade (6th ed), [14.026] (seems to approve?).

404Heslop v. Burns [1974] 1 WLR 1241, 1251G, Scarman LJ; this is confirmed by Street.

405[1971] 1 WLR 612, CA; Carroll v. Manek (2000) 79 P & CR 173, Ch D (manager of licensed premises).

406Street v. Mountford [1985] AC 809 (clause 3); Huwyler v. Ruddy (1996) 28 HLR 555, CA (genuine access rights prevent a lease).

407Southampton Community Health Services NHS Trust v. Crown Estate Commissioners [1997] EGCS

155.

4.Serviced accommodation

[25.76] A residential occupier is a licensee if “the landlord provides attendance or services which require the landlord or his servants to exercise unrestricted access to and use of the premises.”408 The extremes are quite clear. A person allowed sole occupation of a whole house or a self-contained flat for an indefinite period is clearly a tenant. But a guest in a hotel taking a room for a week or so is a licensee, since the management reserves the right of access to the room at all times, provides services, and can terminate the arrangement after the week’s stay. Between lies what Lord Donaldson MR has described as a “spectrum of exclusivity”.409

At the non-exclusive end lies the “Emperors Gate Hotel” discussed in Appah v. Parncliffe.410 This particular “hotel” was really a set of residential apartments, split into 17 different rooms each with its own Yale lock. The management provided daily cleaning, could ask occupants to vacate without notice, and insisted that visitors leave by 10.30 at night. Occupants were held to be licensees. By way of contrast, Luganda v. Service Hotels,411 also concerned a large house in multiple occupation described as a hotel, with a number of rooms each having its own key and gas rings. A student at the Bar was given two days notice to quit after he had been in occupation for three years when he objected to a rent increase. Held on the facts to be a protected tenant, he was able to secure a mandatory injunction to require his reinstatement even after the room had been relet. In Marchant v. Charters412 “bachelors” occupying service apartments which were cleaned daily by a housekeeper and provided with clean linen weekly were held to be licensees, though that decision may have been weakened by Street v. Mountford.413 Specifically approved by Lord Templeman was Abbeyfield (Harpenden) Society v. Woods,414 holding that residents of an old people’s home with sole use of a room were licensees, given that the management provided cleaning, meals, heating, and the services of a housekeeper.

Attendance makes a occupier a lodger only if the provision of the particular service requires that the owner should have unrestricted access to the premises.415 Examples are provision of breakfast, porterage, or management retention of the keys. This last is often used to argue that the occupiers are licensees, but the underlying agreement is crucial: are keys held by the management for the provision of services?416

408Street v. Mountford [1985] AC 809, 818. Anyway Rent Act 1977 protection was removed by letting at a low rent, or for services, or for board or substantial attendance.

409Aslan v. Murphy [1990] 1 WLR 766, 770F–G.

410[1964] 1 WLR 1064, CA (liability of the owners in negligence); Mehta v. Royal Bank of Scotland [1999] 3 EGLR 153, QBD (some of the dicta in this case are doubtful).

411[1969] 2 Ch 209, CA.

412[1977] 1 WLR 1181, CA; Vandersteen v. Agius (1992) 65 P & CR 266, CA; Brillouet v. Landless (1996) 28 HLR 836, CA.

413[1985] AC 809, 825C, Lord Templeman.

414[1968] 1 WLR 374; Street [1985] AC 809, 824B, Lord Templeman.

415Markou v. Da Silvaesa (1986) 52 P & CR 204 (test is entitlement rather than actual exercise).

416Aslan v. Murphy (No 1) [1990] 1 WLR 766, 773E, Lord Donaldson MR; Duke v. Wynn [1990] 1 WLR 766, 776.

5.Joint occupation

[25.77] What if a house or flat is provided for occupation by a group of people, perhaps a cohabiting couple or a group of students? They may collectively form a single tenant or they may be individual licensees sharing with each other.

(1) Strangers sharing

[25.78] Residential sharing arrangements led to a mass of inconsistent Court of Appeal decisions, now clarified by the House of Lords in two combined appeals. The scope for sharing arrangements to create genuine licences is shown by AG Securities v. Vaughan.417 Four occupants of a shared flat each moved in on a different day, paid a different rent, and were strangers before moving in. The House of Lords held them to be licensees. No one of them had a right to exclusive occupation of the whole flat.418 Their position was the same as that of the first person let into occupation of a double bed-sit – since the owner can quite legitimately require the first occupier to share when another occupant is introduced.419

(2) Couples sharing

[25.79] Artificially splitting the totality of possession between two joint occupiers could yield rich dividends for landlords. In Somma v. Hazelhurst,420 the owner entered into two separate agreements with a Mr Hazelhurst and his girlfriend, Miss Savelli, for use of a double bedsitting room for 12 weeks for £120 each. Each was given the right to share the room with each other (which was alright), but also with the owner Somma or another person nominated by the landlord (which was decidedly dubious). The room, it should be said, measured 22 feet by 18 feet and contained two single beds. Neither occupier had exclusive rights, so the Court of Appeal held them to be licensees.

But this decision was absurd. Any landlord could avoid the Rent Act by sharp drafting. The flaw lay in the assumption that the documentation reflected correctly the legal arrangement between the couple, when it patently did not. The whole purpose was that “Hazelhurst and Miss Savelli might live together in undisturbed quasiconnubial bliss”.421 The authority of Somma was doubted in Street and wholly destroyed by a second burst of fire in Antoniades. A Court of Appeal again upheld a clause requiring sharing of a flat containing a bedroom and a small lounge on the basis that the third occupier could sleep in the lounge, a room “not big enough to put the goldfish bowl in”. At the time of the letting, the couple opted for a double bed,

417[1990] 1 AC 417, HL; PV Baker (1989) 105 LQR 165; S Bright (1991) 11 OJLS 136; C Harpum [1989] CLJ 19; J Hill (1989) 52 MLR 408; H Wallace (1990) 41 NILQ 143; P Sparkes [1989] JSWL 293; PV Baker (1989) 105 LQR 165; Parkins v. Westminster CC (1998) 30 HLR 894, CA.

418There was a genuine arrangement that the owner could reallocate the rooms when any individual occupier left: [1990] 1 AC 417, 460E, Lord Templeman; Hadjiloucas v. Crean [1988] 1 WLR 1006, 1023A–B, Mustill LJ; Stribling v. Wickham [1989] 2 EGLR 35, CA; Brennan v. Lambeth LBC (1998) 30 HLR 481, CA.

419[1990] 1 AC 417, 470G, Lord Oliver.

420[1978] 1 WLR 1014, CA; M Partington (1979) 42 MLR 331; K Gray (1979) 38 CLJ 38.

421Street [1985] AC 809, 825G, Lord Templeman.

showing most conclusively that their occupation was joint, and so they were joint tenants.

One unwarranted escape route from joint letting arrangements remains. According to Mikeover v. Brady,422 splitting the rent of a property may be sufficient to split possession between licensees, though the rents were surely not genuinely separate in that case.

(3) Sharing with the landlord’s nominee

[25.80] In both Somma423 and in Antoniades, licence agreements included a provision that the occupiers should share with the landlord or (more realistically) with a person nominated by the landlord. This clause may be perfectly valid where strangers share a twin bedsit,424 so that each occupier arrives and leaves independently, but it is quite unrealistic where a couple share accommodation and, particularly, a bed. By overruling Somma,425 and rejecting this clause in Antoniades426 the House of Lords has shown that this standard form clause will often be treated as a pretence. A sharing provision is only valid if it reflects a real intention that the original occupiers should share with future strangers.

6.Pretences

[25.81] The parties’ description of their transaction is not conclusive, because it may be mislabelled.427 According to Lord Templeman a five pronged digging implement is a fork, even if its manufacturer calls it a spade.428 In Street429 the House of Lords ignored the statement that “this personal licence is not assignable” as well as the “coda” by which Mrs Mountford recognised that she was signing away her Rent Act protection.

A pretence is a term which mis-states the real agreement reached between the parties. Whole agreements or individual provisions may be excluded leaving genuine terms to be interpreted.430 “Pretence” has proved to be a better test that “sham”, since it includes the usual case in which the intention to deceive is that of the landlord alone, that is it is one-sided.431 Apart from Somma and Antoniades there have been a number of more recent illustrations.432

422[1989] 3 All ER 618, CA; JL Barton (1990) 106 LQR 215.

423[1978] 1 WLR 1014, CA.

424AG Securities (four strangers sharing four bedroomed flat).

425[1985] AC 809, 825G.

426[1990] 1 AC 417, 465A–H; Mikeover v. Brady [1989] 3 All ER 618, CA.

427Aslan v. Murphy [1990] 1 WLR 766, 770D, Lord Donaldson; Hadjiloucas v. Crean [1988] 1 WLR 1006, 1019F, Mustill LJ.

428Street [1985] AC 809, 819F; Aslan [1990] 1 WLR 766, 770F–G, Lord Donaldson MR. However, the author uses garden forks with four tines!

429[1985] AC 809, HL; see above [25.73].

430Street [1985] AC 809, 825C, Lord Templeman; Hadjiloucas [1988] 1 WLR 1006, 1013–14, Purchas LJ; Antoniades [1990] 1 AC 437, 445G, Bingham LJ (CA); Aslan [1990] 1 WLR 766.

431AG Securities v. Vaughan [1990] 1 AC 417, 462H, Lord Templeman; Stribling v. Wickham [1989] 2 EGLR 35, CA; Aslan v. Murphy (No 1) [1990] 1 WLR 766; Bhopal v. Walia [1999] 14 LSG 33, CA (sham).

432Nicholaou v. Pitt [1989] 1 EGLR 84, CA; Skipton BS v. Clayton (1993) 66 P & CR 223, CA; Huwyler

v.Ruddy (1996) 28 HLR 550, CA.

The parol evidence rule only allows proof of the written terms of a contract in writing, and so stacks the dice in favour of the landlord. It is easily avoided by showing that the real relationship between the parties was created by an oral grant which predated the written document, for example where a flat was advertised in a newspaper as “To let”.433

Relevant factors in determining pretences are a standard form contract,434 excessive insistence on the fact of personal licences,435 preceding negotiations,436 promises that written terms would not be enforced,437 the relationship of the parties, and the physical size of the accommodation.438 Later conduct may be relevant439: a term that the occupier should vacate each day between 10.30 am and noon with his belongings just might be genuine, but the course of events is highly likely to display its artificiality.440

N. NEGOTIATIONS/TENANCY AT WILL

[25.82] What happens if a landlord allows a person to take exclusive occupation of land while they negotiate for a lease? Traditional theory is that exclusive occupation indicates a tenancy at will if the landlord assents, or at sufferance if he expresses neither approval nor disapproval. Residential security was a significant risk for either a tenancy at will441 or tenancy at sufferance,442 but the courts sought to evade this unfortunate result.

A business tenant can usually insist on renewal of his lease, but entitlement to renewal does not accrue simply from occupation during a period of negotiations. Business tenancies legislation does not apply to a tenancy at will, whether it is express443 or implied.444 In particular it has been held that a tenancy at will should be implied where a person holds pending negotiations.445 Usually payment of rent will convert the tenancy from being at will to being a full periodic tenancy.446 But even after rent payments, the court may be prepared to hold that occupation is still covered by a tenancy at will, as in Cardiothoracic Institute v. Shrewdcrest447 where no security

433O’Malley v. Seymour [1979] 1 EGLR 116, CA.

434Hadjiloucas v. Crean [1988] 1 WLR 1006, 1023D; Demuren v. Seal Estates [1979] 1 EGLR 102, CA.

435Somma v. Hazelhurst [1978] 1 WLR 1014, 1022.

436Antoniades [1990] 1 AC 417, 463D, Lord Templeman; Aslan v. Murphy (No 1) [1990] 1 WLR 766, 770F, Lord Donaldson MR.

437Gisborne v. Burton [1989] QB 390, CA.

438Somma (room 22 by 18 feet); Antoniades at 464, Lord Templeman (sitting room). Statutory rules about overcrowding should be relevant despite Somma.

439Stribling v. Wickham [1989] 2 EGLR 35, 36H, Parker LJ; Walsh v. Griffiths-Jones [1978] 2 All ER 1002; Sturolson & Co v. Weniz [1984] 2 EGLR 121, CA, rejected at [1985] AC 809, 826A.

440Markou v. Da Silvaesa (1986) 52 P & CR 204; Aslan as above.

441Francis Jackson Developments v. Stemp [1943] 2 All ER 601 (if express); contrast Dunthorne and Shore v. Wiggins [1943] 2 All ER 678.

442Artizans Labourers & General Dwellings Co v. Whitaker [1919] 2 KB 301.

443Hagee (London) v. A B Erikson & Larson [1976] QB 209; BRB v. Bodywright (1971) 220 EG 651.

444Wheeler v. Mercer [1957] AC 416, HL.

445Hagee at 217, Scarman LJ.

446Bennett Properties v. H & S Engineering [1998] 2 CLYB 3683 (invoice for the first rent was paid).

447[1986] 1 WLR 368; JE Martin [1987] Conv 55; JE Adams [1988] Conv 16; Longrigg & Trounson v.

Smith [1979] 2 EGLR 421; London & Associated Investment Trust v. Calow (1987) 53 P & CR 340; Canterbury Cathedral Dean v. Whitbread [1995] 1 EGLR 82; Dreamgate Properties v. Amot (1998) 76 P & CR 25, CA; Walji v. Mount Cook Land [2002] 1 P & CR 13 at 163, CA.

arose from occupation pending an application to the court to allow contracting out of business security. A similar result is achieved where a tenant enters into occupation448 or holds over449 at a quarterly rent pending negotiations for a lease, which ultimately prove to be abortive. So landlords of commercial property can generally avoid conferring security during negotiations. However, it must be a genuine tenancy at will. “Parties cannot impose upon an agreement by a choice of label a nature or character which upon its proper construction it does not possess.”450

Direct translation of this case-law to residential property is unhelpful, since tenancies at will are protected. Instead the courts have allowed a diversion into licence doctrine where a potential tenant takes occupation of residential accommodation before making a binding agreement. Parties negotiating for a new residential lease may fall into the Errington exceptional classes of exclusive licences. It needs to be shown that the arrangement for a tenant remains subject to contract, so that the parties do not yet have the intention to create legal relations.451 In theory the negotiation phase could be ended by estoppel where the landlord leads the occupier to believe that he will be treated as a tenant, though many cases fail for want of detriment or on the balance of equities.452

A tenant holding over and paying rent will usually create a new periodic tenancy, but the circumstances may negative an intention to regrant a lease if the owner is considering his position or negotiating to see whether terms can be agreed for a new tenancy.453

O. EXCLUSIVE LICENCES

[25.83] Circumstances surrounding a grant of exclusive possession of separate residential accommodation may make it clear that the occupation is short-term or temporary. Exceptional categories of exclusive licence454 were identified by Denning LJ in Errington v. Errington,455 and approved in Street v. Mountford.456 These are based on an objective assessment of the surrounding circumstances rather than any subjective intention.

1.Family relationship and charity

[25.84] After the owner of one house allowed his brother to occupy rent-free, the brother’s ungenerous claim to security of tenure was rejected.457 The most enduring

448Javad v. Aqil [1991] 1 WLR 1007, CA; Mattey Securities v. Ervin [1998] 2 EGLR 66, CA; James v. Evans [2000] 3 EGLR 1, CA.

449Cricket v. Shaftesbury [1999] 3 All ER 283, Neuberger J.

450Hagee at 217, Scarman LJ.

451VG Fraulo & Co v. Papa [1993] 2 EGLR 99, CA; Brent LBC v. O’Bryan [1993] 1 EGLR 59, CA (commercial sector scout hut).

452Southwark LBC v. Logan (1997) 29 HLR 40, CA.

453Marcroft Wagons v. Smith [1951] 2 KB 496; Vaughan-Armatrading v. Sarsah (1995) 27 HLR 631, CA (South Bank student allowed to stay during exam resit); Leadenhall Residential 2 v. Shirley [2001] EWCA Civ 1011, [2002] 1 WLR 499, [2001] 3 All ER 645.

454An exclusive licensee may have sufficient standing to evict a squatter: Manchester Airport v. Dutton [2000] QB 133, CA.

455[1952] 1 KB 290, 296–298.

456[1985] AC 809, 823D, Lord Templeman.

457Cobb v. Lane [1952] 1 All ER 1199, CA.

authority is Errington v. Errington458 itself, in which a father bought a house for his son and daughter in law with the aid of a building society mortgage, allowing them to occupy on payment of the mortgage instalments; they occupied as contractual licensees rather than tenants at will. A licence also arose from a loose family arrangement that a mother should make monthly payments for accommodation.459 Family relationship can be overridden by opting for a commercial letting at a market rent.460

Charity suggests a licence, including war-time evacuees,461 those enjoying straightforward generosity,462 and residents of almshouses.463

2.Exclusive public sector occupation

[25.85] Secure tenancies in the public sector include both leases and exclusive licences of self-contained accommodation,464 so that security of tenure cannot generally be avoided by the grant of a licence, but there are a number of exceptional cases of exclusive licences lacking any security:

temporary accommodation for the homeless465 is given by lease, but so that there is a statutory right to end the occupation.466

short term arrangements;467 and

short life property pending demolition468 or redevelopment;469 temporary exemption from repossession.470

3.Employees

[25.86] Some employers provide accommodation for employees using normal residential leases, but it is also possible to create a service occupancy (a form of licence471) where occupation of particular property is necessary for the better performance of the job. Expressed in the older terminology of master and servant:

458[1952] 1 KB 290, CA.

459Hardwick v. Johnson [1978] 1 WLR 683, CA; also a licence granted by an employer to a retired employee for life: Foster v. Robinson [1951] 1 KB 149, CA.

460Nunn v. Dalrymple (1989) 21 HLR 569, CA (parents-in-law); Ward v. Warnke (1990) 22 HLR 496, CA; R Lee [1991] Conv 270 (daughter).

461Booker v. Palmer [1942] 2 All ER 674, CA; Minister of Health v. Bellotti [1944] KB 298, CA (a requisitioning authority allowing possession at a weekly rent).

462Heslop v. Burns [1974] 1 WLR 1241, CA.

463Grace v. Taylor [1998] 4 All ER 17, CA.

464HA 1985 s 79(3); Westminster CC v. Clarke [1992] 2 AC 288, HL (hostel); DS Cowan [1992] Conv 285; Brennan v. Lambeth LBC (1998) 30 HLR 481, CA; Parks v. Westminster CC [1998] 13 EG 145.

465Eastleigh BC v. Walsh [1985] 2 All ER 112, HL.

466HA 1985 sch 1 para 4; shortholds are used in the private and social sectors: HA 1996 s 209(3).

467HA 1985 sch 1 paras 5–7; West Wiltshire DC v. Snelgrove [1997] 2 CLYB 3290; Northern Ireland Housing Executive v. McCann [1979] NI 39. In the private sector see below [25.88].

468HA 1985 sch 1 para 6; Camden LBC v. Shortlife Community Housing (1992) 25 HLR 330 Millett J;

Shepherds Bush HA v. Hats Co-Operative (1991) 24 HLR 176, CA.

469HA 1985 sch 1 para 3; Attley v. Cherwell DC (1989) 21 HLR 613, CA; Hyde H Ass v. Harrison (1990) 23 HLR 57, CA; Brent LBC v. O’Bryan [1993] 1 EGLR 59, CA. But see Bruton, HL, below at [25.88].

470Hammersmith & Fulham LBC v. Harrison [1981] 1 WLR 650, CA; PF Smith [1982] Conv 218; Burrows

v.Brent LBC [1996] 1 WLR 1448, CA; S Bright (1997) 113 LQR 216; Westminster CC v. Basson (1990) 23 HLR 225, CA (surely close to the line?); Southwark LBC v. Logan (1997) 29 HLR 40, CA.

471Street v. Mountford [1985] AC 809, 827, Lord Templeman.

“the test is whether the servant requires the premises he occupies in order the better to perform his duties as a servant.”472

In Norris v. Checksfield473 a coach driver was allowed to live in a bungalow to ensure that he was near his place of work and was available to do urgent driving work at short notice. Disqualification as a driver led to his dismissal from his employment, and hence eviction from his bungalow. A caretaker given a flat in the building that he is employed to guard has only a licence,474 coterminous with his employment contract, but a caretaker given an independent house elsewhere will usually be a tenant.475

Occupiers of agricultural tied cottages enjoy special protection.476

4.Purchasers allowed possession before completion

[25.87] Sellers often agree to allow possession to their buyers before completion, for example to carry out redecoration or alterations. Security of tenure should not accrue, despite the nineteenth century learning that a purchaser occupied as a tenant at will.477 Denning LJ avoided the danger of accidental residential security in Errington v. Errington478 by finding that a purchaser in possession under an open contract is in fact a licensee, a ruling apparently accepted in Street v. Mountford.479 If the Standard Conditions of Sale apply there is an express, revocable,480 licence,481 with no security of tenure.482

If the buyer has a contractual right to possession before completion, possession is no longer held under a tenancy at will, but rather by force of the contract.483 This will often be so under an instalment purchase contract,484 but uncertainty in the buyer’s position led to Parliamentary intervention so that the buyer does not lose all by

472Smith v. Seghill Overseers (1875) LR 10 QB 422, 428, Mellor J.

473[1991] 1 WLR 1241, CA. Accepting rent after redundancy will not automatically create a new lease: Brent LBC v. Charles (1997) 29 HLR 876, CA.

474Methodist Secondary Schools Trustees v. O’Leary (1993) 25 HLR 364, CA.

475Facchini v. Bryson [1952] 1 TLR 1386; Scrimgeour v. Waller [1981] 1 EGLR 68, CA (gardener); Royal Philanthropic Society v. County [1985] 2 EGLR 109, CA; PF Smith [1986] Conv 215 (care worker).

476P Sparkes NLT ch 7.

477Howard v. Shaw (1841) 8 M & W 118, 151 ER 973; Ball v. Cullimore (1835) 2 Cr M & R 120, 150 ER 51; Doe d Tomes v. Chamberlaine (1839) 5 M & W 14, 151 ER 7. All cases of contracts providing for possession. But the same rule was applied, after a selective citation of authority, in Ramnarace v. Lutchman [2001] UKPC 25, [2001] 1 WLR 1651, [15–17], PC.

478[1952] 1 KB 290, 296–298, Denning LJ; Wheeler v. Mercer [1956] 1 QB 274, 284. There was a strong rebuttal in the Lords: [1957] AC 416, 425, Viscount Simonds LC, 435, Lord Somervell.

479[1985] AC 809, 827, Lord Templeman.

480Hyde v. Pearce [1982] 1 WLR 560; Crisp v. Fox (1967) 201 EG 769 (right to mesne profits as if purchaser is trespasser).

481Standard Conditions of Sale (3rd ed) cond 5(2).

482Belabel v. Mehmet [1990] 1 EGLR 220, CA. On earlier General Conditions see Hyde v. Pearce [1982]

1All ER 1029, CA; Walters v. Roberts (1981) 41 P & CR 210.

483Ball v. Cullimore (1835) 2 Cr M & R 120, 150 ER 51; Doe d Tomes v. Chamberlaine (1839) 5 M & W 14, 151 ER 7; Howard v. Shaw (1841) 8 M & W 118, 151 ER 973; Crockford v. Alexander (1808) 15 Ves 138, 138, 33 ER 707; Williams v. Greatrex [1957] 1 WLR 31, 40, Hodson LJ; Industrial Properties (Barton Hill) v. AEI [1977] QB 580, CA.

484B Hoggett (1972) 36 Conv (NS) 325, 328–332; B Hoggett (1975) 39 Conv (NS) 343; HW Wilkinson [1989] Conv 307.