Using the wrong tenancy agreement
The Court of Appeal has held that an agreement for an introductory tenancy, used in error, did not in fact grant an introductory tenancy, as the tenancy was precluded from being introductory by the Housing Act 1985. Jonathan Manning and Sarah McKeown report.
Law
By s.188(1) Housing Act 1996, where an applicant has applied to a local authority as homeless and the local authority have reason to believe that he may be homeless, eligible for assistance and have a priority need, the authority have duty to secure accommodation for him pending a decision on his application.
By Part 4 of the Housing Act 1985, a tenancy granted by a local authority to an individual who occupies the property as his only or principal home is a secure tenancy unless one of the exceptions in Sch.1 applies. By Sch.1, para.1A, an exception to security of tenure is created in relation to introductory tenancies. By Sch.1, para.4:
“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.”
Allocation of accommodation is dealt with by Pt 6, Housing Act 1996. By s.159(2):
“(2) For the purposes of this Part a local housing authority allocate housing accommodation when they-
(a) select a person to be a secure or introductory tenant of housing accommodation held by them,
(b) nominate a person to be a secure or introductory tenant of housing accommodation held by another person, or
(c) nominate a person to be an assured tenant of housing accommodation held by a private registered provider of social housing...”
By s.125 Housing Act 1996, introductory tenancies remain introductory until the end of the trial period unless one of the events mentioned in subsection (5) occurs before the end of that period.
By s.128 Housing Act 1996, a court cannot entertain proceedings for possession of a property subject to an introductory tenancy unless a notice complying with that section has been served. An introductory tenant has a right to seek a review of the landlord’s decision to serve a notice and if s/he does so, the review must be carried out and the tenant notified of the result.
Background Facts
In Wandsworth LBC v Tompkins [2015] EWCA Civ 846, July 31, 2015 (Patten, Gloster and Christopher Clarke LJJ) the appellant and her husband applied to the local authority as homeless under Pt 7, Housing Act 1996. They were placed in B&B temporary accommodation. Before their application was determined, they were offered alternative temporary accommodation in a house. When they went to the local authority’s office they were given, in error, an Introductory Tenancy Agreement to sign. The tenancy agreement contained a section for the appellant and her husband to sign which confirmed, among other things, that the tenancy would:
“… become a secure tenancy at the end of the trial period unless:
1. The tenancy has ceased to be an introductory tenancy before that date.
2. Court proceedings for possession have been issued by the Council; or
3. The tenancy has been terminated (e.g. by a Court Order for Possession).”
The appellant and her husband thought that they had been granted an introductory tenancy. The authority sought to bring the tenancy to an end by serving a notice pursuant to s.128, Housing Act 1996. The appellant and her husband requested a review and the review upheld the decision to seek possession. A claim for possession based on the termination of the introductory tenancy was issued but the claim was not issued until after the end of the trial period, when any introductory tenancy would have become secure. The authority were granted permission to amend their claim to claim a declaration that the tenancy of the appellant and her husband was a contractual tenancy (i.e. without security). The county court granted the declaration, finding that the tenancy was not an introductory tenancy as Sch.1 para.4 1985 Act applied and that the terms of the tenancy agreement were not sufficient notification for the purposes of that paragraph. The appellant appealed to the Court of Appeal.
The appellant argued that the fact that the landlord did not intend to grant such a tenancy, or had no legal power to allocate the property to the tenant, or even was misled by the tenant into granting the tenancy does not prevent the tenancy from taking effect as granted: see Saxon Weald Homes Ltd v Chadwick [2011] EWCA Civ 1202, Birmingham CC v Qasim [2009] EWCA Civ 1080 and Islington LBC v Uckac [2006] EWCA Civ 340.
Further or alternatively, para.1A of Sch.1 of the 1985 Act was applicable, not para.4: the grant of the tenancy was an allocation under Pt 6 and/or para.1A prevented a tenancy being secure but did not prevent it being introductory.
It was argued that the notification in the tenancy agreement was sufficient for the purposes of para. 4.
Conclusion
The appeal was dismissed. The statutory regime contained in the Housing Acts applies to determine what kind of tenancy the agreement created, regardless of how the parties chose to describe it in the agreement or even of how they may have intended it should take effect. At the time the tenancy was granted, the appellant had an extant homelessness application. The authority offered the premises pursuant to their duty under s.188(1), 1996 Act, and the grant of the tenancy was pursuant to Pt 7 and not Pt 6. Issuing the wrong form did not ipso facto alter the relevant statutory function. The paragraphs of Sch.1 to the 1985 Act have to be read as mutually exclusive to and not qualified by each other.
Finally, the certificate contained in the tenancy agreement could not amount to notification by the authority that the tenancy was to be a secure tenancy (for the purposes of para. 4): it was no more than an acknowledgment by the appellant and her husband of the effect of s.124-129, 1985 Act.
Jonathan Manning and Sarah McKeown are barristers at Arden Chambers. They appeared for the tenant in this case. Jonathan can be reached on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Sarah can be contacted on or This email address is being protected from spambots. You need JavaScript enabled to view it..
