A headmaster was provided with accommodation in the grounds of a special boarding school for children with physical handicaps. The express terms of his contract of employment (dating from 1967), provided for free board and lodging, but made no reference to the need to occupy any specific accommodation. On his retirement, he claimed that he was a secure tenant with the right to buy. A county court judge found that Housing Act 1985 Sch 1 para 2 did not apply because the headmaster could have fulfilled all the requirements of his employment if he had lived near to the school but not in the school grounds. He was granted a declaration that he was entitled to exercise the right to buy. The council appealed, contending that a term that he was required to occupy the house for the better performance of his duties should be implied into his contract.

 

The appellant worked for Brent Council from 1984. In early 1988 his duties included acting as key-holder for a sports centre. Later in 1988, a flat at the centre became vacant and, in January 1989, he moved into it by agreement with the council. A charge was deducted from his wages as ‘service tenancy rent’. From 1989 to 1990 the council gave him leave of absence from his job but he continued living in the flat. In 1991 he was made redundant but remained in occupation. Notice to quit was served in 1993 and in 1996 a possession order was granted. The appellant sought leave to appeal on the grounds that: (a) his contract of employment had never ‘required’ him to reside in the flat so as to apply Housing Act 1985 Sch 1 para 2 and thereby exclude him from security of tenure, (b) in any event, no such requirement was in place during his leave of absence and (c), by leaving him undisturbed from 1991 to 1993, the landlords must have given him a right to possession not associated with his employment.

 

The plaintiff was a college lecturer and tenant of a house within the college grounds. Although he was better able to perform his duties as a result of ‘living in’, there was no such requirement in his contract of employment. Therefore, he did not come within the exception for resident employees in Housing Act 1985 Sch 1 para 2 and he was a secure tenant. However, the landlords sought to deny him the right to buy on the ground that his home was within the curtilage of the college.

 

The tenant began his employment with the council in 1978. He was offered and accepted the tenancy of a cottage in 1979. There was no express or implied term of his contract of employment requiring him to occupy the cottage and he therefore became a secure tenant on the introduction of the Housing Act 1980. In 1983, he was promoted and accepted a new employment contract which expressly required him to occupy the cottage for the better performance of his duties.

 

The council let a bungalow in school grounds to the school caretaker for the better performance of his duties. In those circumstances, his tenancy was not secure (Housing Act 1985 Sch 1 para 2(1)). He was then made redundant but found another job with the council at a different school. He was allowed to stay in the bungalow until accommodation at the new school became available. He later resigned and received notice to quit. In the county court, the council was granted possession.

 

PC Holmes lived in rent-free accommodation provided under statutory powers by the police authority. The police authority made a policy decision to divest itself of its remaining police dwellings so that any occupier who did not choose to buy his or her home would be required to vacate it in July 2008. PC Holmes sought a declaration that he was either a secure tenant or entitled in equity to remain in occupation until he retired. Recorder Armitage refused relief on either basis. PC Holmes appealed.

 

The council bought a house on a housing estate near a school, for occupation by the school caretaker. The caretaker occupied the house as his home until his retirement. The council then gave notice to quit, relying on Housing Act 1985 Sch 1 para 2 to deny security of tenure.

 

Mr Lamond began work for the council as a school caretaker in 1970. He moved into accommodation owned by the council near the school. After he stopped working for the council a possession order was made. HHJ Catlin held that he was not a secure tenant and that the court could imply into Mr Lamond’s contract a term that he should live at the premises for the better performance of his duties within the meaning of Housing Act 1985 Sch 1 para 2(1).

 

Mr Godsmark was employed from 1990 at a local authority residential special school. His conditions of employment required him to reside in accommodation on the school site for the better performance of his duties. In 1993 and 1995 he moved to other properties also owned by the local authority on the school site. In January 2003 a trust company took over the running of the school from the local authority and Mr Godsmark’s employment was transferred to it. The trust went into occupation of the school and Mr Godsmark’s rent for the accommodation was paid to the trust. In April 2003 Mr Godsmark issued proceedings claiming that he had the right to buy the accommodation as a secure tenant. The local authority denied that he was a secure tenant, relying on Housing Act 1985 Sch 1 para 2. HHJ Welchman held that (a) the requirement for Mr Godsmark to live in a property at the school was not a sham; (b) there had been an implied variation of his employment so as to require him to live in the accommodation to which he moved in 1993 and 1995; and (c) although Mr Godsmark had ceased to be employed by the local authority after the transfer, his occupation of the accommodation was still referable to his employment so that he remained within the exception.

 

Mr Davies was employed by the council in January 2003 as a ‘resident caretaker’ at a school. His job description stated that ‘attendance at evenings and weekends was essential’ and that ‘presence on site was essential for reasons of security: “the post holder must be residential”’. The letter offering him employment stated: ‘As a condition of your employment you will be required for the better performance of your duties to occupy the accommodation provided at [the school bungalow].’ He signed a document headed ‘Service Occupancy – Tenancy Agreement’. It stated: ‘Since your occupation of the dwelling is a condition of your employment with the council, your right to live in the dwelling will end automatically when your employment with the council ends …’ He lived in the bungalow with his family. The rent payable was initially £75.05 per month. In September 2014, after Mr Davies underwent surgery, the job description was revised to provide that: ‘This is a residential role with the post holder may be required to live on site in school provided accommodation [sic].’

 

Mr Wragg was employed by the council as a countryside ranger, with duties relating to the management and conservation of areas of common land in Surrey. He lived in a house owned by the council. His contract of employment stated:

He served notice under Housing Act 1985 s122 claiming to exercise the right to buy. The council served a notice under section 124 denying that he had a right to buy, relying on the exclusion from secure tenancy status in Sch 1 para 2(1) (premises occupied in connection with employment). He brought a claim in the county court under section 181 for the determination of that issue. The claim was decided on the assumption that he was a tenant. After a detailed review of the evidence, including the work carried out by Mr Wragg since 1984, HHJ Reid QC found that Mr Wragg’s contract did not fall within the exception in para 2(1). The council appealed.

 

The tenant lived in a house acquired by a board of health in 1879 for sewage works. It was appropriated by a borough council in 1972 under the Town and Country Planning Acts and transferred to the present council on local government reorganisation in 1974.

 

The Department of Transport acquired property for a road-widening scheme and then granted the association the right to use it for housing purposes.

 

In 1969, Lambeth LBC declared a clearance area and, in 1971, compulsor-ily purchased properties within it with a view to demolishing them. Later, the council decided to rehabilitate the properties and so passed them to the co-operative to use as housing accommodation. The council was never able to finance the rehabilitation scheme. However, in possession proceedings, the co-operative contended that the original acquisition for demolition was an acquisition for ‘development’ and that the tenancies were excluded from security of tenure by Housing Act 1985 Sch 1 para 3. Its evidence about the prospect of development of the house occupied by the defendants or the land around it in the foreseeable future was, however, vague, with the relevant council officer stating that he was ‘not sure’ what the council’s plans were, except that retention and improvement of the housing were more likely than demolition and clearance.

 

In 1996, Vinayak Patel leased a flat ‘with vacant possession’ to Haringey LBC for a term of one year nine months. The council covenanted not to use the flat except as ‘temporary housing accommodation’. Although the lease included provision for Mr Patel to obtain vacant possession at the end of the term, it did not include provision for him to obtain vacant possession ‘when required by him’. In January 1997 the council granted a subtenancy to Ms Hickey. It was described as a ‘private sector leasing scheme: form for non-secure subtenancy’ (see Housing Act 1985 Sch 1 para 6). Later, while Ms Hickey was still living in the flat, Mr Patel granted the council a further lease, this time for a term of three years from 19 September 1997. In August 2003 the council served a notice to quit on Ms Hickey and then, in December 2003, sued for possession and rent arrears of £5,358. Ms Hickey defended on the basis that she was a secure tenant because her subtenancy was outside the provisions of para 6 because (1) the flat was not leased with vacant possession when the 1997 lease was granted because she was then in lawful possession; and (2) the lease did not include provision for the lessor to obtain vacant possession ‘when required’. District Judge Armon-Jones held that para 6 did apply and that Ms Hickey was not a secure tenant. He made a possession order. Ms Hickey appealed.

 

Mrs Abdi was accepted by the council for rehousing as a homeless person and, pending an offer of permanent council accommodation, was placed in ‘private sector leasing’ accommodation. The council served notice to quit and began possession proceedings on the basis that Housing Act 1985 Sch 1 para 6 was satisfied and the premises were not secure. The tenant asserted that, on the true construction of the agreement between the private owner and the council, the latter had not been given ‘vacant possession’ and/or the former had not retained a power to recover possession, as required by para 6.

 

The council took a property under licence from a private owner and then granted the defendant a licence to occupy. It later served notice to quit and sought possession. For the occupier, it was argued that a licence from a public landlord was the equivalent of a tenancy (Housing Act 1985 s79(3)) and that Housing Act 1985 Sch 1 para 6 could not apply because the council had taken a licence rather than a lease from the private owner.

 

Westminster leased premises from Pathmeads Housing Association. That lease contained a stipulation that Westminster should not ‘use the premises or any part thereof otherwise than for the purposes of temporary housing accommodation in accordance with the provisions of paragraph 6 of Schedule 1 of the 1985 Act’. It also provided that ‘on expiry of the term … or when required by the lessor … the council shall give to the lessor vacant possession of the whole of the premises’. Westminster owed Ms Boraliu the main housing duty under Housing Act 1996 s193. In February 2005, the council granted her a tenancy of one of the flats which it leased from Pathmeads. The tenancy agreement stated that it was non-secure under Housing Act 1985 Sch 1 para 6 (premises leased to landlord on terms enabling head-lessor to obtain vacant possession). There was no reference to Sch 1 para 4 (tenancy granted under homelessness obligations contained in Housing Act 1996 Part 7) in either the lease or the tenancy agreement. Later, Pathmeads told Westminster that it wanted the premises back and the council served a notice to quit on Ms Boraliu. In the subsequent possession claim, Westminster relied only on Sch 1 para 4 as the basis for the tenancy being non-secure. Ms Boraliu was unrepresented and an outright possession order was made. HHJ Knight QC allowed an appeal (see November 2007 Legal Action 36), holding that a tenancy could not come within both paragraphs 4 and 6, and that this was a case which fell within paragraph 6. Westminster appealed.

 

Tenants claimed that a house which was purportedly subject to an assured shorthold tenancy had not been let as a dwelling and so was a business tenancy. They relied on the surrounding circumstances and, in particular, the fact that all the other houses in the street were used as guest houses.

 

In 1995 the claimant’s predecessor in title granted a ten-year lease to the defendant. The property comprised a basement, ground floor and first floor. The lease described the property as ‘shop premises’ and the ‘permitted use’ clause allowed for the use of ‘the lower part of the premises for the sale and catering for fish, and the upper part for residential purposes only’. The lease also obliged the tenant ‘to keep the premises open as a shop for carrying on the permitted use at all times of the year during the usual business hours of the locality, and at all times to maintain in good order an adequate and appropriate display in the shop windows’. The defendant sold fish and groceries in the lower part and lived upstairs. However, arrears accrued and the claimants issued proceedings for forfeiture, almost £25,000 of arrears, mesne profits, interest and costs. The defendant sought relief from forfeiture under County Courts Act 1984 s138. District Judge Manners found that the premises were occupied for the purposes of a business and made an order for possession in 28 days. On appeal, HHJ Cotran found that they were not occupied for business premises, allowed the defendant’s appeal, set aside the absolute possession order and substituted an order suspended on terms that the defendant pay current rent and £1,000 per month towards the arrears.

 

The Court of Appeal considered two cases. In the first, the tenant was a partner in a business which did not have a separate address. He operated from home, using business equipment, receiving visitors and having business notepaper with that telephone number. A considerable volume of trade was carried on from the address. In the second case, the tenant was a medical practitioner with consulting rooms nearby. However, he occasionally saw patients in the rented premises. His notepaper gave both addresses and telephone numbers.

 

 

The court had to decide as a preliminary issue whether premises were occupied for business purposes, and so fell within the protection provided by Landlord and Tenant Act 1954 Part II, or for residential purposes, in which case they were within Rent Act protection. The tenant gave evidence that she had bred dogs and provided kennelling in timber outbuildings adjoining a two-bedroomed house until 1976. From 1976 to 1988 her son, who lived in a caravan on the premises, carried on these activities in his spare time, but there had been no kennelling, breeding or grooming at the premises since 1988. HHJ Paynter Reece, applying the test in Cheryl Investments v Saldanha (Cheryl Investments Ltd v Saldanha) found that the tenant occupied the premises as a residence and the running of the business was merely incidental.

 

The tenant took in lodgers who often stayed for long periods. At the time of the hearing she had five lodgers who occupied three rooms. She made little profit from them. The landlords claimed that the tenant had lost Rent Act protection and served notice under Landlord and Tenant Act 1954 s25, purporting to terminate the tenancy.

 

The tenant rented a grocer’s shop with residential accommodation above. The tenant claimed that he had acquired Rent Act protection because he lived in the residential part of the premises and the shop was unoccupied. A county court judge held that a small amount of business use was enough to take the tenancy outside the Rent Act and within the Landlord and Tenant Act 1954 and that the tenant had ceased to use the shop as a matter of convenience.

 

In 1947, Miss Davis granted Mr Russell a tenancy of premises and three acres of land of orchards at Gladstone House, Glastonbury. It was a requirement of the tenancy that Mr Russell reside at the premises and to farm the adjoining land. Subsequently, the orchards were used as pasture land for a cow and a calf and a number of chickens. Mr Russell also ran a bed and breakfast from the premises. In 1980, both Miss Davis and Mr Russell died; Mr Booker obtained the freehold reversion and Mr Russell’s daughter – Miss Russell – remained in occupation of the premises. In 1981, Mr Booker began steps to recover possession of the land. Before a claim was issued, Miss Russell sought a declaration in the county court that she had succeeded to her father’s tenancy and that it was protected under the Rent Act 1977 because the land was no longer occupied as an agricultural holding. Mr Booker contested the application on the basis that, inter alia, the property had originally been let as an agricultural holding with more than two acres of land and as a result was incapable of becoming a protected tenancy under the Rent Act 1977. Miss Russell’s application was dismissed and she appealed to the Court of Appeal.

 

In 1970, the Greater London Council granted Mr Sitkowski a tenancy of a building. He used the ground floor for his business and the first floor as a family residence. In 1989, he ceased using the ground floor for his business. He continued to occupy the first floor as his home, and he used the ground floor for storage in connection with his residential use of the first floor. In 1990, the freehold reversion was sold to Phaik Seang Tan and Kit Yeng Tan (the claimants). In 2003 they served notice to quit and brought a possession claim. HHJ Brian Knight QC made an order for possession, finding that, in 1970, Mr Sitkowski’s tenancy enjoyed the protection of the Landlord and Tenant Act 1954 Part II, that from 1989 the Landlord and Tenant Act no longer applied and that a tenant could not, simply by unilaterally ceasing business use, obtain protection under Rent Act 1977. Mr Sitkowski appealed.

 

In 1966 the claimant went to live with a Mrs Barker. She worked for her as a kennel hand and assisted her domestically. She was not paid wages, but was kept by Mrs Barker. In 1978 Basildon Development Corporation granted Mrs Barker and the claimant a lease of a bungalow and kennels for a term of 20 years. There was a covenant by the tenants ‘to use the demised premises for carrying on the trade or business of the keeping and training of greyhounds and for residential accommodation incidental thereto’. It was, accordingly, a business tenancy within the meaning of Landlord and Tenant Act 1954 Part II. The freehold reversion was transferred to the defendant in 1994. By 1986 commercial activity at the property had ceased and the claimant devoted herself full time to the care of Mrs Barker, who eventually died in 1995. There was evidence from its files that the defendant knew about this and agreed to treat the lease as ‘non-commercial’ and to convert it to a ‘housing tenancy’. In a claim for a declaration, a circuit judge found on the facts that there had been an agreed variation of the lease to treat the property as a house ‘let as a separate dwelling’ within the Housing Act 1985. However, since there was no surrender and re-grant, the tenant continued to hold under the 20-year lease as varied, and therefore did not have the benefit of Landlord and Tenant Act 1985 s11, since that section only applies to leases for seven years or less. The claimant appealed and the defendant cross-appealed.

 

Where a lease of business premises coming within Landlord and Tenant Act 1954 Part II contained a covenant by the tenant not to ‘use the premises or any part thereof’ for any other purpose than that of a sculptor’s or artist’s residential studio’, the premises could not be converted into a Rent Act regulated tenancy by the unilateral acts of the tenant. The Court of Appeal reaffirmed that ‘mixed premises’ designed for both business and dwelling purposes come within the protection of the 1954 Act, not the Rent Act.

 

Premises comprising a house, a yard and a workshop were let to the tenant ‘to use the demised premises only for residential purposes and for the purposes of trade and business for which they are let, namely as a motor body repairs workshop’. The tenant and family lived in the house and carried on a business from the yard and workshop until 1979/80. When his business ended, the tenancy was no longer within Housing Act 1985 Sch 1 para 11, which excludes from protection tenancies to which Landlord and Tenant Act 1954 Part II applies. Accordingly, he sought a declaration that he was a secure tenant.

 

A tenant of a maisonette with Rent Act protection became a self-employed art historian, making his living from writing books and articles on seventeenth-century painting, organising exhibitions and advising dealers and private collectors. He had no work address other than the maisonette and all his writing and some preparatory work was carried out at home. There was a registered rent, but subsequently the landlord claimed that the tenant was not occupying as a residence and served a notice under Landlord and Tenant Act 1954 s25 to terminate what he said was a business tenancy outside the protection of the Rent Act. Without prejudice to his contention that there was Rent Act protection, the tenant served a counter notice under Landlord and Tenant Act 1954 s29. The court considered the nature of the tenancy as a preliminary issue. Following Cheryl Investments v Saldanha (Cheryl Investments Ltd v Saldanha), HHJ Diamond QC asked whether the business activity was more than incidental to the residential occupation. He held that there was Rent Act protection. The business activities were never part of the tenant’s reason for, or aim and object in, occupying the premises. The writing occupied only about 30 per cent of the tenant’s professional time and accounted for only a small proportion of his income.

 

Mr May was a New Zealander. Mrs May, his wife, was an Australian. They were living and working in England on a series of temporary residence permits. In 1972 Mr Buchmann let premises to Mrs May for six months. This was followed by a succession of short-term tenancies which did not enjoy Rent Act protection because they were furnished and granted before the Rent Act 1974 came into force. Mr and Mrs May then went abroad. On their return they contacted Mr Buchmann, saying that they would be in the country for a few months before going abroad. They signed a three-month tenancy agreement which stated that the letting was for the purpose of a holiday. Mr and Mrs May, in subsequent possession proceedings, denied that the purpose of the tenancy was for a holiday.

 

The tenant persuaded the landlord to grant a tenancy of a property, which she usually let as a holiday bungalow during the summer, by saying that he was having a house built and that it would be ready for occupation four months later.

 

Four student nurses and two other students went to view a flat which was to let. At the landlord’s request they filled out forms giving details of their present addresses, their parents’ addresses, their employers and their banks. The nurses gave their addresses as a nearby nurses’ home. One of the student nurses signed a tenancy agreement which stated that the purpose of the letting was for a holiday. All six then moved in. Six months later, when the tenancy expired, at the landlord’s request one of the other occupants signed a further six-month ‘holiday let’ agreement.

 

HHJ Edwards held that, notwithstanding the dictionary definition of ‘holiday’ accepted in Buchmann v May (Buchmann v May), there was ‘no reason why a working holiday should not fall within the provisions of section 9 of the Rent Act’. (See also Francke v Hakmi [1984] CLY 1906, Bloomsbury and Marylebone County Court.)

 

 

The Court of Appeal considered whether or not payment of gas and electricity bills constituted rent. HHJ Barr held that an arrangement whereby the defendants had been given exclusive occupation of a house (with the exception of one room) and paid gas and electricity bills, while the owner paid general and water rates, was a periodic tenancy.

 

The house in question was built in the early part of the twentieth century. In 1960 it was converted into six self-contained flats. In 1962 a number of lock-up garages were added. In 1968 one of the garages was demolished and a two-storey extension erected in its place. The extension was tied into the house, but there was no internal communication between the extension and the main building. The landlord lived in the extension. Tenants lived in the original house. The landlord claimed possession, relying on Rent Act 1974 s5A (now Rent Act 1977 s12). HHJ Barr held that the premises occupied by the landlord did not form part of the same building as that occupied by the tenants and dismissed claims for possession.

 

A tenant sought a declaration that her tenancy was protected under the Rent Act 1977. Her landlord claimed that Rent Act 1977 s12 applied. The premises were a flat in a house which had been converted in 1959. A county court judge decided that the building was not a purpose-built block of flats, although in some circumstances a building which was wholly gutted and rebuilt could be considered a new and different building.

 

Three landlords jointly granted a tenancy. At the time of the grant and throughout the length of the tenancy, one of the three landlords lived elsewhere in the building. The other two lived at other addresses. The landlords took possession proceedings, claiming that they were resident landlords within the meaning of Rent Act 1977 s12.

 

The property in question was a neo-Georgian house. Two extensions had been built on to the main house. There was no communication between either extension and the main house. The landlord lived in one extension. The tenant lived in the other extension. A county court judge, after visiting the premises, decided that the whole property comprised one building and that the landlord was a resident landlord within the meaning of Rent Act 1977 s12. He made a possession order.

 

The Court of Appeal confirmed that, when courts are considering whether a landlord is a resident landlord within the meaning of Rent Act 1977 s12, they should use the same test as when deciding whether a statutory tenant continues to occupy premises as a residence for the purposes of Rent Act 1977 s2. Landlords who are temporarily absent must leave in the premises some personal and visible sign of their intention to return. In Jackson it was held that the landlord had not done this and her claim for possession was dismissed. Furniture was not a sufficiently personal sign and the fact that the landlord allowed the tenant’s brother to use the only room in the house which she retained was more consistent with an intention not to reside.

 

The landlords claimed to be resident within the meaning of Rent Act 1977 s12. The premises which were let (198a Nether Street) were an extension to the house in which the landlords lived (198 Nether Street) and had a common gas supply, a common electricity supply and a common water supply and were served by the same central heating system as the main house. Originally there had been interconnecting doors, but these had been blocked up. Further building works were carried out, but the county court judge found that, when the notice to quit served by the plaintiffs expired, 198 and 198a were still part of the same building and accordingly the tenants did not enjoy the protection of the Rent Act.

 

During the 1960s the tenant began to rent a room in a house where the landlord was already living and, accordingly, had a restricted contract without full security (Rent Act 1977 ss12(1)(b)(i) and 19). The landlord later decided to convert the house into self-contained flats and it was agreed that both the landlord and the tenant would move into another neighbouring house. The tenant was the first to move. For four weeks after the tenant moved, the landlord did some work on the new house but still slept in the original house until works in the new house were completed, when he moved in. In 1992 the landlord served a notice to quit. The tenant defended possession proceedings, claiming that the landlord was not resident at the time when the new tenancy was granted and that, accordingly, she had acquired full Rent Act security. At first instance a possession order was made. The judge stated that he was not required to consider a ‘fine matter of timing’ and that the landlord’s occupation had occurred either before or simultaneously with the creation of the new tenancy and that the tenant knew what was intended. The tenant appealed.

 

The landlord claimed to be a resident landlord within the meaning of Rent Act 1977 s12. He occupied a rear room in the flat and kept belongings there, including a fridge and a kettle. However, he had no cooker and, if he wished to eat there, he bought food that did not need to be cooked or take-away meals. As a result of a medical condition which prevented him from dressing or undressing himself, he did not sleep in the room, but went to stay with a friend each night.

 

A tenant appealed unsuccessfully against a possession order which had been made on the basis that he was outside the protection of the Rent Act 1977 because there had, at all times, been a resident landlord within the meaning of s12. The tenant claimed that, although part of his flat was above part of his landlady’s accommodation, it was not part of the same building because there were separate entrances. He also claimed that, although his original landlady’s daughter had moved into the building a fortnight before her mother’s death and had lived in the premises for 13 months after the death, she was not resident because her real home was in the USA.

 

The tenant claimed that he was a protected tenant and that a continental breakfast consisting of two bread rolls, butter, jam and marmalade, unlimited tea or coffee with milk and sugar and a glass of milk was not board within the meaning of Rent Act 1977 s7. The breakfast was served in a communal dining room by kitchen staff employed by the landlord.

 

Mr Taboada rented a bed-sitting room. The landlords provided cleaning and refuse removal on a daily basis and clean bed linen weekly. In 1989 the rent officer assessed the value of the services at £12.97 when he registered a fair rent of £45 per week. In possession proceedings, the judge found that the provision of linen was an attendance and that the value of the services formed a substantial part of the rent.

 

HHJ Stuckley held that the possibility of food (a breakfast of cereal, eggs, toast and tea or coffee) in another house was not ‘board’ within the meaning of the Rent Act.

 

The ‘board’ offered by the landlord consisted of two alternative options. The tenant could either have breakfast at a particular café (‘The Cup and Saucer’) or collect the ingredients for breakfast from a shop.

Mr and Mrs Tompkins and their four children were evicted and applied to Wandsworth LBC for accommodation on grounds of homelessness. The council did not accept that they owed them the full housing duty under Housing Act 1996 s193, but provided temporary bed and breakfast accommodation pursuant to the interim duty (s188). As the council continued its investigations, it wrote offering to accommodate them in another property. The letter stated that the council was ‘now able to provide you with alternative temporary accommodation in accordance with its duties under the Housing Act 1996 (Part 7), as amended’. As a result, Mr and Mrs Tompkins signed a tenancy agreement, headed ‘Grant of Introductory Tenancy’. Later, the council wrote that the introductory tenancy form had been used in error and that they should have been granted a non-secure tenancy pending the completion of the section 184 inquiry. The council served notice of proceedings (Housing Act 1996 s128) within the 12-month trial period commencing with the grant of the tenancy, but did not issue the claim for possession until one day after the expiry of the 12-month period. As a result, the council amended the claim form and the particulars of claim to plead that, by virtue of Housing Act 1996 s124(2) and Housing Act 1985 Sch 1, para 4, the tenancy was incapable at law of taking effect as an introductory tenancy. The council argued that the tenancy was granted in pursuance of its Part 7 homelessness function, and in particular the interim duty under section 188, and so could not have been a secure tenancy unless the notification referred to in paragraph 4 had been given. As the tenancy could not therefore have been a secure tenancy, it could not take effect as an introductory tenancy either and the grant therefore operated to confer on Mr and Mrs Tompkins a non-secure tenancy. The tenants argued that it took effect as an introductory tenancy because the notification required under Sch 1 para 4, was provided by a certificate contained in the tenancy form which stated that the tenancy ‘will become’ a secure tenancy at the end of the trial period. HHJ Lamb QC held that the tenancy was granted pursuant to the council’s homelessness functions and that the certificate did not amount to a notice under Sch 1 para 4, because it did not notify the Tomkins that the tenancy ‘is to be regarded’ as a secure tenancy, but stated that the tenancy ‘will become’ a secure tenancy. He granted a declaration that they held the property under a non-secure tenancy.