The Supreme Court allowed her appeal. Lord Neuberger stated:

The Court of Appeal dismissed his appeal. The trust had been clear from the outset that the eventual agreement would be a formal written one, so the ‘invitation’ to take a tenancy was simply an invitation to treat and not an offer. Even if, in the alternative, it was an ‘offer’, the woman had plainly rejected it by refusing to enter into a joint tenancy agreement and the trust was under no further obligation to let the flat on a joint tenancy.

The Court of Appeal allowed a second appeal. Since Ms Alexander-David was not 18 when the tenancy was granted, she could not hold a legal estate (Law of Property Act 1925 s1(6)). A periodic tenancy is a legal estate. If a person purports to grant a legal estate to a minor, the grant operates as a declaration that the transferor holds the land in trust for the minor (Trusts of Land and Appointment of Trustees Act 1996 s2(6) and Sch 1 para 1(1)). The effect of the grant was to place the council in the role of trustee of the tenancy until Ms Alexander-David reached the age of 18. It could not give a valid notice to quit because to do so would be in breach of that trust. Therefore, it could not determine the tenancy or seek possession. Councils which wish to avoid such a result – but want to accommodate teenagers – may do so by providing them with non-exclusive possession (because exclusive possession is the necessary hallmark of a tenancy) or by arranging for another adult to hold the legal estate on trust for the teenager.

The Court of Appeal allowed the appeal. There was no proper evidential basis for the judge’s conclusion that Mr Ahmed was authorised to act and did act as his wife’s agent in entering into the first agreement. In evidence, his wife had stated that: she had had no involvement in finding accommodation for the family; she was unaware that Mr Ahmed had applied to the council; she did not know that the council had offered them a tenancy of the property; she did not know about the appointment to sign the first agreement; and she did not know about the appointment to sign the second agreement. As there was no agency, the first agreement was an agreement with Mr Ahmed as sole tenant. At his request that tenancy was replaced by letting to him and his mother as joint tenants under the second agreement. That tenancy was determined by the mother’s notice of termination. After the departure of Mr Ahmed and his mother, there was no subsisting tenancy and Mr Ahmed’s first wife was not a tenant, secure or otherwise. With regards Article 8, there was no arguable error of law in the judge’s approach to the issue of proportionality. His conclusion was one which was open to him.

Dismissing the occupants’ appeal, the Court of Appeal held that there was ample material on which the trial judge could conclude that there was no subjective intention on the council’s part to create a tenancy and that no such intention could be inferred from its conduct. Furthermore, on the expiry of the initial six weeks, there was no grant of a fresh licence which could qualify as a secure tenancy. The licence granted under Housing (Homeless Persons) Act 1977 s4(3) was validly determined by the letter of 28 September, even though it did not expire on ‘a rent day’, and so the defendants then became trespassers. The fact that the family remained in occupation pending the outcome of the court proceedings did not mean that they acquired a ‘secure’ licence.

On appeal against the dismissal of those proceedings, the Court of Appeal affirmed the judge’s finding that the letter from the original joint tenants was an offer of surrender. The council had accepted that offer by the grant of a new tenancy to the defendant. Such a grant could be inferred (notwithstanding the absence of any written agreement or rent book in the defendant’s name) from the facts that: (a) the council had known since 1986 that the tenants had gone and would not be returning; (b) it had accepted the rent knowing that it was being paid by the defendant; and (c) it had taken no action on the defendant’s original application for housing made in 1985. The case was wholly distinguishable from Westminster CC v Basson (Westminster CC v Basson). The appeal was dismissed.

The Court of Appeal held that the initial letter was not consistent with the proposition that the occupation was with the council’s consent. Therefore, neither a tenancy nor a licence had been granted and the council was entitled to possession. The events after the initial letter ‘merely showed that one department of the council was unaware of what was happening in other departments’ ((1991) 23 HLR at 228).

The Court of Appeal dismissed the council’s appeal. A term granted for a fixed period of months and then from month to month fell ‘clearly within the genus of the statutory descriptions in Law of Property Act 1925 s205(1)(xxvii), either as expressly covered by the words of the paragraph itself or because the paragraph envisages the possibility of creating terms of years, including a term for less than a year and a term from year to year (ie a periodic tenancy). [There was] no good reason why the statute should be taken to have rendered impossible the creation of an amalgam of the two, as had been familiar to the common law for centuries.’ [para 17].

The Supreme Court has refused permission to appeal against the decision of the Court of Appeal because the proposed appeal did not raise an arguable point of law.

The Court of Appeal (by a majority) dismissed Mr Bruton’s appeal, but it was allowed by the House of Lords. The facts that the Housing Trust was itself only a licensee and that it performed an important social function in providing accommodation for the homeless were not special circumstances that made the grant of exclusive possession something other than a tenancy. The character of the landlord was irrelevant. The Housing Trust’s lack of title was also irrelevant. The House of Lords upheld Family Housing Association v Jones (Family Housing Association v Jones).

The House of Lords held that Mr Walsh had a tenancy. He had signed the conditions of tenancy and the documents were unambiguous.

The House of Lords held that the agreement created a tenancy, not a licence. In the absence of special circumstances, if it is agreed that an occupant should have exclusive possession for a fixed or periodic term in return for paying rent, a tenancy is created, irrespective of how the parties may describe the arrangement. Lord Templeman stated that the key distinction is between tenants on the one hand and lodgers, who are merely licensees, on the other:

The Court of Appeal allowed the appeal. The reservation of rent is not necessary for the creation of a tenancy. While the payment of rent for a term with exclusive possession would always result in a tenancy it did not follow that the contrary applied, ie that exclusive possession without the payment of rent did not create a tenancy. In this case, Arnold & Co occupied the premises exclusively and for a term that was certain, ie one that could be terminated on one quarter’s notice.

The Court of Appeal held that he was a tenant, not a licensee. The provisions requiring Mr Murphy to leave the room for 90 minutes a day ‘were wholly unrealistic and were clearly pretences’. The fact that the landlord retained keys was not decisive:

The Court of Appeal dismissed the plaintiff’s application for leave to appeal. It held that, although the courts must be astute to detect shams, the provision enabling residents to be moved from room to room here served a practical and real purpose (applying Westminster CC v Clarke (Westminster CC v Clarke)) and the agreement was for a licence, as it purported to be. Since the building did not provide self-contained premises (but merely rooms) and since facilities in a shared kitchen were available for food preparation, it was a ‘hostel’ within the statutory definition and so the Protection from Eviction Act 1977 did not apply.

The Court of Appeal held that Ms Paton had a tenancy. Although the parties intended that the house should be sold, there was no binding contract for its sale since no purchase price had been agreed. The only legally enforceable contract entered into by the parties had given Ms Paton exclusive possession in return for weekly payments of £1.20. The case clearly fell within the three criteria set out in Street v Mountford (Street v Mountford).

His application was refused and his appeal to the Court of Appeal dismissed. It was held that his lack of exclusive possession and the fact that he had taken advantage of hotel services meant that he was a hotel guest booking accommodation at a daily rate. He was a licensee who did not enjoy statutory protection. His occupation was not in respect of a dwelling for the purposes of Protection from Eviction Act 1977 s3.

The Court of Appeal, however, remitted the case to the county court for a full trial, stating that the landlord’s claim was ‘on the evidence not so clear and straightforward that an order for possession should be made in proceedings under Order 113’. Some of the clauses appeared never to have been enforced and ‘were astonishingly extreme’. The clause limiting rights of occupation to 22½ hours per day provided a ‘foundation for the defence of sham’ and was prima facie ‘an artificial contrivance intended to mislead’. However, in passing, both Ralph Gibson and Nicholls LJJ agreed that, if the document had represented the real agreement between the parties, on its true construction, the occupants would have been lodgers and not tenants. In distinguishing between tenants and lodgers,

The Court of Appeal held that, as it was clearly intended that Mrs Jones and her son were to be the only occupants and as she paid a weekly charge, she was a tenant. It ‘felt bound to refuse to follow’ the earlier Court of Appeal decision in Ogwr BC v Dykes [1989] 1 WLR 295, CA, where it had been held that a local authority providing temporary accommodation had granted only a licence.

Following Errington v Errington and Woods (Errington v Errington and Woods), the Court of Appeal held that, as a beneficiary under the trust, Mrs Taylor enjoyed the privilege of occupation of the rooms as a beneficiary only and had no interest in the property. Her occupation was referable to a legal relationship other than one of tenancy and could only be characterised as a licence. It fell outside the general category of cases identified in Street v Mountford (Street v Mountford). The weekly sums were not rent and payment of them did not convert her occupation as a beneficiary into occupation as a tenant.

The Court of Appeal dismissed the defendant’s appeal. The judge’s approach had been correct. The defendant was initially a licensee. As a matter of construction, the defendant remained contractually entitled to the services and the landlord retained unrestricted access to the room to provide those services.

The defendants appealed claiming that the judge had (1) given insufficient reasons for exercising his discretion in favour of rescission; (2) failed to take into account the facts that the defendants would be homeless and that the claimants would obtain the benefit of the defendants’ improvements.

The Court of Appeal dismissed the appeal. The judge had been right to find that there were two distinct but inter-linked agreements (one for the sale, the other for the right to station the chalet on the land). He had also been right to conclude that he had power in equity to set aside the second agreement. It was impossible to criticise the exercise of his discretion.

The Court of Appeal upheld the county court’s finding that in reality the Brownes were to have exclusive possession. In view of Law of Property Act 1925 s149(6), the term granted for their joint lives took effect as a term of 90 years. The premium for that grant was the discount of two-thirds of the value of the flat paid by the purchasers. There was, accordingly, a tenancy which was binding on the building society.

The Court of Appeal dismissed the appeal. It was ‘quite clear that the Appointment Letter did not grant legal exclusive possession to Mrs Watts.’ As in Gray v Taylor (Gray v Taylor), ‘there was no question of the Trustees trying artificially to colour the Appointment Letter as licence rather than a tenancy in order to disguise the true nature of the relationship. The Trustees could only properly discharge the trusts of the Charity … if a personal revocable licence was granted (which could be revoked if, for example, the occupier no longer became qualified under the Scheme because they became wealthy)’. Mrs Watts was granted a personal licence to occupy the Property on the terms of the Appointment Letter. Although it was not strictly necessary to consider the validity of Gray v Taylor, HHJ Raeside was entirely correct to hold that that case was not materially distinguishable from the present case and was binding on her. Gray v Taylor was correctly decided on its facts because the terms of the charitable trusts and the terms on which the defendant was let into occupation showed that she was never intended to have legal possession and was only ever granted a personal licence to occupy her flat in the almshouse.

The Court of Appeal also rejected the submission that Gray v Taylor was no longer good law because its effect was to give rise to a breach of Article 14 rights. In the county court, it had been conceded on behalf of Mrs Watts that the Charity was not a public authority within Human Rights Act 1998 s6. After referring to a number of authorities, including McDonald v McDonald (!!Housing Law Casebook - 7th edition:McDonald v McDonald!!), the court stated ‘The question as to when Article 8 is engaged therefore remains unclear … However, for the purposes of the present case we are prepared to proceed on the assumption that its facts do fall within the ambit of Article 8 for the purposes of engaging Article 14.’ Although it was not necessary to come to a concluded view, a number of features strongly suggested that Mrs Watts’ status as an almsperson was not a qualifying characteristic for the purposes of Article 14. Her residence in an almshouse was a matter of choice on her part. It was not an innate characteristic but one which was acquired. Secondly, there was a danger of defining a qualifying personal characteristic by the very differential treatment of which Mrs Watts complained (see the comments of Lord Bingham in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 at [28]). Thirdly, 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. Bearing in mind the wide margin of appreciation accorded to contracting states in implementing social and economic policies in matters concerning housing, the Court of Appeal rejected the submission that there was no good reason why an almsperson should be denied the protections granted to the occupiers of any other form of social housing. In the context of almshouses, the exclusion of security of tenure for almspersons has been in place for many years. The grant of a tenancy would be inconsistent with the duty of the trustees to provide accommodation for deserving persons. The grant of a licence therefore balanced fairly the competing interests of the Charity and the resident in a manner which would not be achievable if residents had the status of tenants.

HHJ Matheson QC held that Mr Lynch’s occupation until HB was awarded was entirely conditional and almost charitable so that the tenancy did not start until the later date. This meant that Mr Lynch had only an assured shorthold tenancy and Mr Kirby was entitled to possession. Mr Lynch appealed to the High Court.

Davies J held that the three hallmarks of a tenancy identified in Street v Mountford (Street v Mountford) were present, namely exclusive possession for a term at a rent. The rent and the term were evidenced in the pre-tenancy determination form which was the only written evidence of any of the terms of the tenancy. The county court judge had erred in taking into account the landlord’s subjective intention. A contract may be conditional, in the sense that obligations are suspended until the fulfilment of a condition precedent. There was an intention to create legal relations from 20 February 1997 which was when the tenancy began. The appeal was allowed and the possession claim dismissed.

Hildyard J rejected all the defendants’ contentions and made a possession order. He construed the agreement as meaning that the right to serve a notice to quit was dependent upon the existence of one or more of the grounds specified and so the tenancy had to be treated as one for an uncertain duration. Although the parties envisaged that the defendants would stay at the property for a long time, it was not their intention that they should be legally entitled to enjoy the premises for life. Accordingly, as construing the agreement as a 90-year tenancy under section 149(6) confounded the parties’ intentions and fundamental aspects of the agreement, it was to be treated as a contractual licence. As such, the periodic licence was determined by the notice to quit.

It was held that the circumstances, including the family relationship, negatived any intention to create a tenancy. (Decision approved in Street v Mountford (Street v Mountford).)

The court deduced from the conduct of the parties that there was no intention to contract at all. (Decision approved in Street v Mountford (Street v Mountford).)

The Court of Appeal held that there was a ‘strong family flavour’ to the arrangements. Hirst LJ said that ‘… the set up of the estate … bears all the hallmarks of a loose family arrangement’. The labels in the documents were not conclusive and ‘… words such as ‘tenant’ and ‘rent’ when they appear, were not used as terms of art reflecting any particular legal status, but rather as convenient shorthand’. Mrs Meynell was, accordingly, a licensee.

Stocker LJ held (at p587) that it was not open to the circuit judge to conclude that the prima facie result that exclusive possession and regular weekly payments gave rise to a tenancy had been displaced by reason of the family relationship of the parties. He concluded that a tenancy had been created.

It was held that, although he had exclusive possession and a rent book, there were exceptional circumstances which rebutted the presumption of a tenancy. There was no intention to create legal relations.

The Court of Appeal held that there had been no intention on the owner’s part to create a new tenancy. Although money was paid to and subsequently returned by the landlord, it was not rent in a technical sense and no inference of the creation of a new tenancy could be drawn.

The Court of Appeal dismissed the appeal. The original payments of £65 were not payments of rent; the trustees never received the money and such payments were only ever intended as contributions to the household expenditure and were not conditional on Miss Vesely’s right to remain at the premises. While it was possible for there to be a tenancy when no rent was payable, the special character of the trust administered by the trustees, the particular purpose for which the trustees acquired the flat in 1994, the circumstances in which Miss Vesely went into occupation of the flat and continued in occupation, the circumstances in which Miss Miller moved into the flat later in 1996, the friendship between Miss Vesely and Miss Miller and her family, the continuing uncertainty during 1996 about the future living arrangements of Miss Vesely and of Miss Miller were all circumstances from which it was legitimate to infer that Miss Vesely was not granted a tenancy of the flat at the end of 1996.

The Court of Appeal dismissed the landlord’s appeal. There was no basis for saying that there was no intention to create legal relations. The fact that it was a transaction between members of a family did not prevent the creation of a legal relationship. If the facts constituted a tenancy, the relationship between the parties did not displace it.

The occupants claimed that in view of the provision in the agreements limiting the maximum number of occupants at any one time to four and in view of the fact that the owners did not retain keys and rarely visited the premises, the four occupants at any given time enjoyed exclusive possession and accordingly had a joint tenancy. They also submitted that the consensual replacement of existing occupants with new people amounted to the surrender and implied re-grant of a new tenancy.

Although these contentions were accepted by a majority of the Court of Appeal, they were rejected by the House of Lords, which held that each individual had separate contractual rights and obligations, without exclusive possession of the flat or any part of it. Lord Bridge stated that there was nothing artificial about these contracts and that he did not understand ‘by what legal alchemy they could ever become joint’. The position would have been different if it could have been shown that individuals had exclusive possession of particular rooms, in which case there would have been individual tenancies.

Although the Court of Appeal held that two licences had been created, the House of Lords found that the agreements signed by Mr Villiers and Ms Bridger were interdependent and that they together enjoyed joint and exclusive possession of the whole of the flat in consideration of periodical payments. Among other factors, the flat was too small to share with strangers. Accordingly, they had a joint tenancy. Lord Bridge referred to the ‘artificiality’ of the separate agreements and the provision which purported to allow the ‘licensor’ or other people to use the flat. Lord Templeman referred to them as ‘a pretence only intended to deprive the [occupants] of the protection of the Rent Acts’ and pointed out that the provisions allowing the owner to insert other occupants could ‘not be lawfully exercised because they [were] inconsistent with the provisions of the Rent Acts’. Lords Ackner, Oliver and Jauncey contrasted the ‘substance and reality’ or ‘true nature’ of the arrangement with the written agreements which were a ‘smoke screen’ or ‘window dressing’.

The Court of Appeal held that, although the employee was never able to perform the duties for which he was employed, he was a licensee since there was a factual nexus between occupation of the premises and employment. It was enough that he was required to occupy the premises for the work which it was anticipated that he would carry out. As the employee’s contract provided that his rights of occupation would end on termination of his employment, no notice to terminate the licence was required in accordance with Protection from Eviction Act 1977 s5(1a). The employee’s appeal against a possession order was dismissed.

The Court of Appeal held that by implication there was a grant of a new weekly tenancy.

The Court of Appeal found that Mr County was a tenant. Fox LJ stated:

The Court of Appeal dismissed the appeal. Islington had granted the licence to Patchwork with the strict intention of bearing no responsibility towards its tenants. This was clearly reflected in the terms of the licence. The licence did not authorise Patchwork to create a tenancy binding on Islington. Alternatively, even if it had such authority, any tenancies granted to the individual occupiers were terminated by the termination of the licence under the principle that when a head lease ends, whether through expiry of time, forfeiture or notice, any subtenancy derived under it also ends. The only exception is where the head lease is ended by surrender.

The Court of Appeal held that the subtenant became the protected tenant of the landlord.

The Court of Appeal dismissed her appeal against an order for possession. Nourse LJ held that she was a lodger and, given the entirely informal nature of the arrangement for sharing the house, it would be ‘ludicrous’ to infer that the parties had intended to create a legal relationship of landlord and tenant.

The Court of Appeal held that, on termination of the licence, any interests of the occupiers granted to them by the co-operative also fell. The occupiers could not establish a tenancy or licence between themselves and the plaintiffs. Accordingly, no question of security could arise, nor could the exception in Housing Act 1985 Sch 1 para 3.

After giving detailed consideration to the Rent Acts from a historical perspective, the Court of Appeal granted the tenants’ appeals and in two cases set aside possession orders made against them. The court stated:

Millett J granted a declaration that the council was entitled to possession. SCH was not a tenant but a licensee of the blocks, because it did not have exclusive possession. The occupiers’ rights were lost on termination of the licence between Camden and SCH.

The Upper Tribunal dismissed the appeal. The lease did not require only the lessee to use the premises as a private residence. The lease did not preclude the lessee from the sub-letting or assigning the term and, accordingly, provided her sub-tenants used the property as a private residence the clause was not offended. However, in this case there was no evidence that those taking short-term lettings of a few days ever intended to use, or in fact used, the premises as a private residence. There needed to be a degree of permanence for the property to be used as a private residence.

HHJ Huskinson sitting in the Upper Tribunal allowed the lessor’s appeal. After considering Aaron William M Burchell v Raj Properties Limited [2013] UKUT 0443 (LC), he held that on its proper construction the covenant did preclude the lessees from subletting to a subtenant who would occupy the maisonette. The FTT had erred in finding any estoppel by convention or waiver (see Republic of India v India Steam Ship Co Limited (‘the Indian Endurance and The Indian Grace’) [1998] AC 878). The FTT also erred in finding that the covenant was an unfair contract term and hence unenforceable. He found that there was a breach of covenant on the grant of the assured shorthold tenancy.