This was an appeal by L against the decision of the High Court in favour of Mansfield District Council (Mansfield) which held that a licence granted by the council did not give a tenant security of tenancy in respect of a property which he was occupying temporarily. The legal issue for the Court of Appeal was whether an agreement between L and Mansfield described as a licence, gave L a secure tenancy under s79 Housing Act 1985. More specifically whether this section conferred on L a licence to occupy a dwelling house within the terms of s79 (3) of that Act such that if it had been a tenancy, the premises would have been let as “a separate dwelling”. If so, the licence amounted to a secure tenancy even though it was inconsistent with the parties intentions expressed at the time.
L was a secure tenant in a dwelling provided by Mansfield. It commenced possession proceedings against him on the grounds of nuisance and annoyance to neighbours. Whilst awaiting trial of the possession proceedings, L suffered a serious assault and remained in hospital for several weeks. During this time, the keys to his accommodation were returned to Mansfield on L’s behalf and the Authority then refused to permit him to occupy the premises until the trial of the possession action. Following an application for the keys to be returned the Court granted an injunction for the return of the keys but held that it would not be effective until the trial of the possession action. Permission was given for L to make it effective on short notice should he be successful in resisting the possession order. Mansfield wrote to L offering alternative accommodation following his discharged from hospital but prior to the trial. It offered him temporary accommodation and asked him to enter into a licence agreement which was of limited duration and expressly stating it was not protected by either the Rent Act 1977 or the Housing Act 1985. Following the grant of a possession order at the conclusion of the trial Mansfield served a notice of determination of the licence and L was effectively homeless.
L contended in the Court of Appeal that this action made the licence take effect as a secure tenancy under s79 (1) Housing Act 1985. The consequence being that the tenancy could not be brought to an end by the Landlord except by obtaining one of several possible court orders. The Court of Appeal considered the facts. If L had been allowed to move back into his original accommodation he would have been there under his original tenancy which was a secure tenancy. L’s substitute accommodation was provided as a temporary expedient expressly on the basis that he would be there only until the trial or thereabouts. However, the Court held that the fact that the terms of the agreement negating the application of the secure tenancy provisions, did not mean that the intended effect of the agreement reflected the true legal position. The parties were not able to contract-out of the provisions of the Housing Act 1985. Mansfield contended that there was never any intention to create a relationship of landlord/tenant and there were special circumstances which prevented the agreement from creating a tenancy even though L had exclusive occupation of the premises. Furthermore, even if the agreement created a tenancy or a licence which might be within s79 (3), it did not amount to a secure tenancy or licence because the premises were not let as a “separate dwelling”. This view was reflected by the judge’s decision in the High Court and followed Tyler v Royal Borough of Kensington & Chelsea. The judge found that there was an inextricable link between the grant of the licence and the possession proceedings. The parties had also agreed that the period of the licence was limited in time to the judgment in the possession proceedings.
The Court of Appeal distinguished the facts in Tyler from the present case in that L’s temporary accommodation was not supplementary to or in conjunction with his secure tenancy but rather as a substitute for it. The licence was entered into as a temporary expedient to provide L with housing pending the decision of proceedings in circumstances in which the view was taken by the council that it would be unsatisfactory for L and his neighbours for him to move back home. The Court noted that there were situations for which the law made provisions as temporary expedient for example where a tenant could be temporarily accommodated pending building work; but there was no such provision in the present case. The Court held that the question had to be whether the licence agreement gave L the right to occupy his temporary accommodation as a separate dwelling. It rejected Mansfield’s argument that the agreement was a licence agreement and the provisions of s79 (3) of the 1985 Act did not apply. The Court held that s79 (3) did apply thereby giving L a secure tenancy; he was living in a dwelling house and he had exclusive possession of it with no element of sharing.
The Court was sympathetic for Mansfield who had conferred a degree of security of tenure on L contrary to the expressed intentions of the parties involved which it had done in what it perceived was the best interests of all concerned as a short-term solution. Had it been willing to face the risks involved in returning the keys to L the present issues would not have arisen; it would have eventually got the possession order it sought, secured possession of the property and Mansfield would not have found L as its secure tenant. However there was no answer to L’s argument that the licence agreement gave him exclusive possession of a dwelling house for use as a separate dwelling. It was his sole dwelling and residence at all material times despite his wish to return to his former home.