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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mohamed v London Borough of Barnet [2019] EWHC 1012 (QB) (17 April 2019) URL: http://www.bailii.org/ew/cases/EWHC/QB/2019/1012.html Cite as: [2019] 1 WLR 6581, [2020] HLR 2, [2019] EWHC 1012 (QB), [2019] 3 All ER 901, [2019] WLR 6581 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
MARIAN DAHIR MOHAMED |
Applicant |
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- and - |
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THE MAYOR & BURGESSES OF THE LONDON BOROUGH OF BARNET |
Respondent |
____________________
Jane Hodgson (instructed by HB Public Law) for the Respondent
Hearing date: 28 March 2019
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Crown Copyright ©
Mrs Justice Thornton:
Introduction
Background
The licence agreements between Rent Connect and the Council
"…use of the Property for the purpose of providing temporary housing accommodation in accordance with either the Licensee's Homelessness Prevention Strategy or under the provisions of Part VII of the Housing Act 1996."
"5.1 This Agreement is effective from the Licence Commencement Date until the expiry of any Notice of Termination given by either of the Parties
5.2 Either Party may terminate this Licence by giving the other not less than 14 days' notice in writing of its intention and upon termination; the Licensee will make arrangements with the Licensor to jointly check the condition of Property and its contents
5.3 Recovering Possession
Where the Licensee wishes to terminate the Licence and the property is vacant notice to terminate may be by way of a telephone message, followed by a written Notice to Terminate delivered by post or email. The Licensee will use its best endeavour to inform the Licensor in advance when it is aware of the Property becoming vacant and whether the Licensee is likely to want to continue to Licence and the accommodation
5.4 Termination by the Licensee
The Licensee may immediately terminate this Licence if the Licensor has not met repairing obligations at clause 3.2 or when the void work required is longer than 2 working days. The Licensee will notify the Licensor of their intention to terminate the Licence.
5.5 Termination by the Licensor
Where the Licensor wishes to terminate the Licence, he may do so by way of a telephone message followed by a written Notice to Terminate AND thereupon all interest of the Licensee and the Occupant in respect of the Property shall cease and determine at the expiry of the notice period."
5 Termination
5.1 This agreement is effective from the 07 of April 2017 until the date of notice of termination.
5.2 The initial Notice to terminate will be by way of a telephone message, followed by written Notice to Terminate by email.
5.3 In the event that the contact [sic] is terminated for whatever reason, this agreement will terminate with effect from the date of the termination of the contract.
5.4 The exercise of rights to terminate the agreement shall not affect any existing rights of obligations of any of the parties in the Contract."
The licence to occupy between Ms Mohamed and the Council
The judgment below
Conclusion
40. I am faced with what, at first impression, are 2 conflicting decisions of the Court of Appeal.
…
41. Mr Lee, as I understood it, simply submitted that the Hickey case, being the most recent decision, was authoritative. Moreover, it had not been reached per incuriam because, as the Court of Appeal indicates at para 19 of its judgment, it had had regard to the judgment of Mann LJ in Abdi. In the event, for reasons given by Sir Martin Nourse at paragraph 19, the Court of Appeal had felt able to distinguish the case of Abdi as being "a case where the facts were different". Of course the facts are different in all cases, but Sir Martin Nourse continued, "Having carefully considered the observations of Mann LJ, I am of the opinion that, while they are confirmatory of the views I have expressed in relation to sub- paragraph a) they are not of assistance in relation to sub- paragraph b).
42. Unfortunately, Sir Martin Nourse does not go on to explain why the Court of Appeal's decision in Abdi is not of assistance on the application of Sched 1 paragraph 6b) in a case such as the instant case.
43. Ms Hodgson, advancing an argument based on exchanges taking place between the court and the bar, seeks to distinguish Hickey in this way. She points out that Hickey is a case in which there was provision on the face of the agreement for termination at the end of a specified period, namely at the end of the term of the lease. The problem in Hickey was that there was no further provision allowing termination otherwise by the owner, or by the "lessor" for the purposes of Sch. 1 para 6 on his desiring such termination, whether before or after the expiry of the term. However, says Ms Hodgson, in the Abdi case, the Court of Appeal had been concerned with a case without a fixed term or specified period of duration and therefore one only needed to be concerned with whether the landlord or lessor had reserved the power to terminate by notice at will.
44. In that context, she explained, Hickey was not the applicable authority in the instant scenario but rather Abdi was and the Court of Appeal had distinguished Abdi on the basis that it was not a case which required a twin-track provision precisely because the agreement itself was not an agreement for a specified period. Alternatively, as a fallback, Ms Hodgson contended that in the instant case there was a twin-track provision because the agreement did refer to a specified period, namely a period of "not less than 14 days", which is the period mentioned in the clause 5.2. Accordingly, she submitted, it was open to this landlord to terminate at will or to rely on termination at the end of a specified period. This alternative or fallback submission, she was easily able to identify as arguable because the Court of Appeal had so described it in the Abdi case.
45. With great respect to Mann LJ in the case of Abdi, I do not accept the proposition that "specified period" in Sched 1 para 6b) is referable to the period of notice given by a lessor who is terminating the arrangement when required by him. It seems to me on a proper reading of Sch 1 para 6b) that that reference to "a specified period" is a reference to the specified period of the provision of the accommodation by the provider to the local authority. In other words, it is referable to the normal case of a fixed term or determinate arrangement.
46. It is precisely, in my judgment, because that is the proper understanding of the term "a specified period" that the alternative is provided, i.e. there must be provision for termination, in addition, whenever required by the lessor. That is for the good policy reasons explained by Sir Martin Nourse in paragraph 18 of the Hickey judgement. I accordingly reject the fallback position of Ms Hodgson. It seems to me, with respect, entirely artificial. All the more artificial where, in the instant case she asked me to accept as a specified period a period of "not less than 14 days' notice". Of course, "not less than 14 days" might be a period of as much as one year, or more, or less. It is difficult to describe a provision which opens with the words "not less than" as specifying any particular period.
47. Accordingly, I reject the fall-back position.
48. Ms Hodgson's claim for possession on this point, therefore, turns or falls on her main proposition that in the case of an indeterminate term such as Abdi, the requirement for the double-headed termination provision identified in Hickey cannot run. That is because, by definition, the agreement does not contain a specified period. What it does contain is simply a provision for termination by the parties on notice and, most importantly in the instant case, clause 5.5 termination by the licensor on notice i.e. on request.
49. Mr Lee struggled manfully to argue against this justification for the distinction between the judgments in Hickey and Abdi. He failed to satisfy me that Ms Hodgson's submissions were incorrect. It seems to me that these two judgments are precisely reconcilable. They provide, see Hickey, that where an agreement is for a specified period, i.e. a fixed term and will therefore terminate at the end of the fixed term there must be a second or supplementary provision allowing for termination by the lessor when he or she requires, even if that be before the end of the express term.
50. In contrast, see Abdi, where there is no express term under the occupation arrangement, termination will only be when required by either of the parties. In this case, as in Abdi, there is an express term enabling the landlord to terminate.
51. In these circumstances and for those reasons, I am satisfied that in the instant case, reading both the agreement of 2015 and the supplemental agreement of 2017, there is provision for the lessor to obtain vacant possession, "when required", namely by giving the requisite notice. I understood Mr Lee to be contending the giving notice to terminate did not inexorably lead to the proposition that the landlord would obtain "vacant possession", that term appearing in Sch 1 para 6b). To my mind there is nothing in that point. As the Court of Appeal recognised expressly in Hickey, a lease for a finite period necessarily rests on the premise that at the end of the term, vacant possession will be given. Likewise, where an agreement provides for termination by notice, that is on the necessary premise that at the expiry of notice, vacant possession will be given.
52. For all those reasons, I am satisfied that on this preliminary point the Council has established that the terms of Sch 1 para 6 are satisfied and, accordingly, the agreement in this case for occupation by the defendant is not an agreement which attracted the security of tenure provisions of the Housing Act 1985.
The legal framework
"79 Secure tenancies
(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.
(2) Subsection (1) has effect subject to—
(a) the exceptions in Schedule 1 (tenancies which are not secure tenancies),
…..
"In outline, the tenants of local authorities, housing action trusts, new town corporations, urban development corporations and others are prima facie to enjoy security of tenure and other rights under this Part, but (a) many are excluded by Sch.1,"
"A tenancy granted in pursuance of any function under Part VII of the Housing Act 1996 (homelessness)…is not a secure tenancy unless the local housing authority concerned have notified the tenant that the tenancy is to be regarded as a secure tenancy".
"A tenancy is a not a secure tenancy if –
(a) the dwelling-house has been leased to the landlord with vacant possession for use as temporary housing accommodation,
(b) the terms on which it has been leased include provision for the lessor to obtain vacant possession from the landlord on the expiry of a specified period or when required by the lessor,
(c) the lessor is not a body which is capable of granting secure tenancies, and
(d) the landlord has no interest in the dwelling-house other than under the lease in question or as a mortgagee"
i) the landlord condition and the tenant condition in section 79 are satisfied,
ii) paragraph 6 of Schedule 1 applies to licences as well as leases (Tower Hamlets v Miah [1992] 2 WLR 761),
iii) if the exception to security of tenure in paragraph 6 is to apply, the requirements of all four sub-paragraphs must be satisfied (Hickey at para 12),
iv) save for paragraph 6b) which the parties cannot agree on, the requirements of paragraph 6 are satisfied in the present case.
The Court of Appeal decisions in Abdi and Hickey
"2. This Licence shall subsist until revoked as hereinafter provided.
…
6. The terms on which the Licensee shall permit the nominees to be temporarily accommodated at the Premises shall reserve and acknowledge the right of the Grantor to enter the Premises for any reason at any time without having to give any previous notice to the Licensee or their Nominees and further shall ensure that the Licensee can give vacant possession of the Premises to the Grantor on termination of this Licence.
…
8. This Licence may be terminated by the Grantor giving to the Licensee not less than 7 days' notice in writing."
"As to subparagraph (b), Mr Tyrrell submitted that that was not satisfied because neither is there a specified period in the licence nor is there a provision for vacant possession when required by the licensor. Mr Underwood drew our attention to clauses 2, 6 and 8.
…
Mr Underwood submits that, taken together, the three clauses provide for the licensor to obtain possession on the expiry of a specified period, that is to say, seven days, or alternatively when required. The first submission is plainly arguable. The second is, in my judgment, unanswerable. There was provision for the licensor to obtain possession when he required, that is to say, by the giving of a seven-day notice. Accordingly, I reject Mr Tyrrell's submissions in regard to subparas (a) and (b) and I should remark that he accepted they were not conspicuously encumbered by merit. I, accordingly, conclude that there was no secure licence and, the notice to quit being accepted as sufficient to end the contractual licence."
"By a lease dated July 4, 1996 and made between… Mr Patel… and... the Council Mr Patel let, and the Council took with "vacant possession" ...the premises for a term of one year and nine months… This was not the first nor as will appear the last lease of the premises… However apart from the length of the terms granted and the rents they were all for present purposes in the same form.
…
Clause 5(9)(a) contained what was in effect a covenant by the Council at the end or sooner determination of the term peaceably to leave and yield up the premises to Mr Patel "with vacant possession".
…
Clause 5(3) provided:
"In the event that the [Council] shall decide to terminate this Lease before the expiry of the Term then notwithstanding anything hereinbefore contained the [Council] may terminate this Lease by giving to [Mr Patel] not less than four weeks previous notice of the date of termination of this Lease (to expire at any time)…"
"15. The construction of sub-paragraph (b) is more difficult. As applied to the present case, the requirement is that the terms on which the premises have been leased by the head lease include provision for Mr Patel to obtain vacant possession from the Council "on the expiry of a specified period or when required by [Mr Patel]". Mr Grundy, who has appeared for the Council both here and below, accepts that the head lease must include express provision to the effect stated. He also accepts, as is clear, that the head lease includes provision for Mr Patel to obtain vacant possession on the expiry of a specified period, i.e. at the end of the term. He further accepts, as is also clear (see paragraph 3 above), that the head lease does not include provision for Mr Patel to obtain vacant possession when required by him. The question then is: What is the provision that the head lease must include?
16. Two views are possible:
(1) The head lease must either include a provision for Mr Patel to obtain vacant possession on the expiry of a specified period or it must include a provision for Mr Patel to obtain vacant possession when required by him. On this view, sub-paragraph (b) is satisfied because the head lease includes a provision for Mr Patel to obtain vacant possession on the expiry of a specified period.
(2) The head lease must include a single provision for Mr Patel to obtain vacant possession either on the expiry of a specified period or when required by him. On this view sub-paragraph (b) is not satisfied because the head lease only includes a provision for Mr Patel to obtain vacant possession on the expiry of a specified period.
17. Mr Wonnacott was disposed to accept that either view was grammatically possible. I think that that may well be so. But the opening words of sub-paragraph (b), "the terms on which it has been leased include provision", are to my mind more suggestive of a single provision for obtaining vacant possession in either event than of two alternative provisions. Moreover, if there were two alternative provisions, the second would, as Mr Wonnacott submits, be otiose, since every lease effectively provides for the lessor to obtain vacant possession on the expiration of a specified period.
18. I have also had regard to Mr Wonnacott's argument based on the policy of the 1985 Act. He submits that paragraph 6, being an exception to the general policy that residential tenants of local authorities and similar bodies should have security of tenure, is there to encourage private landlords, who want to be able to get their properties back on short notice, to enter into temporary arrangements with such bodies. It would be contrary to the policy of the exception to prevent private landlords from obtaining vacant possession before the expiration of their leases and when required by them.
19. For these reasons I have come to the conclusion that sub-paragraph (b) of paragraph 6 is not satisfied in the present case. I should add that both counsel referred us to a passage in the judgment of Mann LJ in Tower Hamlets London Borough Council -v- Abdi [1993] 1EGLR 68, 71. That was a case where the facts were different. Having carefully considered the observations of Mann LJ, I am of the opinion that, while they are confirmatory of the views I have expressed in relation to sub-paragraph (a), they are not of assistance in relation to sub-paragraph (b)."
Encyclopedia of Housing Law analysis
"This provision is designed to preserve so-called North Wiltshire type schemes. The provisions of sub-paras (c) and (d) are designed to pre-empt any evasive use of this paragraph. As originally employed-and indeed, as continued by this paragraph-the scheme was designed to avert the effects of Rent Act 1977. The letting to the local authority or housing association as housing association intermediate landlord would itself be outside Rent Act 1977 security provisions, while the tenancy between intermediate landlord and occupant would not be protected at all, because of subsections 13-16 1977 Act. The effect of the paragraph is to ensure that the occupant will not be secure under this Act either. The paragraph will also apply where the arrangement between the authority and the landlord is one of licence opposed to lease: Tower Hamlets LBC v Miah (1991) 24 HLR 199 CA. See also Tower Hamlets LBC v Abdi (1993) 25 HLR 80, CA. Paragraph 6a only requires vacant possession as between the head landlord and the authority; it is irrelevant that the property is occupied by a sub-tenant of the authority at the date of the grant or re-grant of the lease: Haringey LBC v Hickey [2006] EWCA Civ 373.
Paragraph 6(b) is only satisfied where a lease entitles the owner of the property to obtain vacant possession both at the expiry of the fixed term of the lease and at any point that he requires possession. Where the lease only entitled the owner to obtain possession on expiry, para 6b) was therefore not satisfied: Haringey LBC v Hickey above.
While there is an overlap between this paragraph and para 4, above (accommodation provided in discharge of homelessness functions) this paragraph may also apply in circumstances where paragraph 4 does not (e.g. where temporary accommodation is provided in the National Assistance act 1948 or the Children Act 1989). Accordingly, the fact that both paragraphs may apply the same circumstances does not restrict the operation of the other, i.e. they are not mutually exclusive Westminster CC v Boraliu [2008] EWCA Civ 1339"
Submissions on behalf of Ms Mohamed
Submissions on behalf of the Council
Discussion
"6. A tenancy is not a secure tenancy if:
…
b) the terms on which it has been leased include provision for the lessor to obtain vacant provision from the landlord on the expiry of a specified period or when required by the lessor."
"16. Two views are possible:
(1) The head lease must either include a provision for Mr Patel to obtain vacant possession on the expiry of a specified period or it must include a provision for Mr Patel to obtain vacant possession when required by him. On this view sub-paragraph (b) is satisfied because the head lease includes a provision for Mr Patel to obtain vacant possession on the expiry of a specified period.
(2) The head lease must include a single provision for Mr Patel to obtain vacant possession either on the expiry of a specified period or when required by him. On this view sub-paragraph (b) is not satisfied because the head lease only includes a provision for Mr Patel to obtain vacant possession on the expiry of a specified period.
17. Mr Wonnacott was disposed to accept that either view was grammatically possible. I think that that may well be so…"
"…. the head lease does not include provision for Mr Patel to obtain vacant possession when required by him... The question then is: "What is the provision that the head lease must include?"
para 6…...is there to encourage private landlords, who want to be able to get their properties back on short notice, to enter into temporary arrangements with such bodies. It would be contrary to the policy of the exception to prevent private landlords from obtaining vacant possession before the expiration of their leases and when required by them." [18]
The emphasis in bold is my emphasis.
"Paragraph 6(b) is only satisfied where a lease entitles the owner of the property to obtain vacant possession both at the expiry of the fixed term of the lease or at any point that he requires possession. Where the lease entitled the owner to obtain possession on expiry, para 6b) was therefore not satisfied: Haringey LBC v Hickey above."
The underlining of 'fixed term' is my emphasis.
"48. Ms Hodgson's claim for possession on this point, therefore, turns or falls on her main proposition that in the case of an indeterminate term such as Abdi, the requirement for the double-headed termination provision identified in Hickey cannot run. That is because, by definition, the agreement does not contain a specified period. What it does contain is simply a provision for termination by the parties on notice and, most importantly in the instant case, clause 5.5 termination by the licensor on notice i.e. on request.
49. Mr Lee struggled manfully to argue against this justification for the distinction between the judgments in Hickey and Abdi. He failed to satisfy me that Ms Hodgson's submissions were incorrect. It seems to me that these two judgments are precisely reconcilable. They provide, see Hickey, that where an agreement is for a specified period, i.e. a fixed term and will therefore terminate at the end of the fixed term there must be a second or supplementary provision allowing for termination by the lessor when he or she requires, even if that be before the end of the express term.
50. In contrast, see Abdi, where there is no express term under the occupation arrangement, termination will only be when required by either of the parties. In this case, as in Abdi, there is an express term enabling the landlord to terminate."
"… periodic tenancies obviously pose something of a puzzle if the law insists that the maximum term of any leasehold estate be certain … In one sense the term is certain, as it comes to an end when the week, the month, the quarter or the year for which it has been granted comes to an end. But this is not the practical reality, as the law assumes a re-letting (or the extension of the term) at the end of each period, unless one or other of the parties gives notice to quit. So, the actual maximum term is completely uncertain…"
"It is precisely, in my judgement, because that is the proper understanding of the term "a specified period" that the alternative is provided, i.e. there must be provision for termination, in addition, whenever required by the lessor. That is for the good policy reasons explained by Sir Martin Nourse in paragraph 18 of the Hickey judgment".
"45. With great respect to Mann LJ in the case of Abdi, I do not accept the proposition that "specified period" in schedule one para 6b) is referable to the period of notice given by a lessor who is terminating the arrangement when required by him."
Conclusions