Kay & Ors v London Borough of Lambeth & Anor

A secure tenancy under Part IV of the Housing Act 1985 requires a direct landlord and tenant relationship. Security is grafted onto the underlying contractual tenancy and ends if that tenancy ceases to exist.

A tenancy which confers no estate in land cannot survive against a superior landlord merely because an intermediate licence or lease is terminated. Where the superior landlord then has an unqualified right to possession, Article 8 does not require a further proportionality assessment. The decision to seek possession remains reviewable under ordinary public law principles. Article 1 of the First Protocol does not enlarge the proprietary rights recognised by domestic law.

The appellants occupied short-life properties owned by the London Borough of Lambeth. London & Quadrant Housing Trust had admitted them under purported licences forming part of a scheme which it operated on its own account. Following Bruton v London & Quadrant Housing Trust, those arrangements were recognised as tenancies between the Trust and the occupiers.

Lambeth terminated the Trust's head-leases and sought possession. His Honour Judge Cooke ruled in December 2002 that the appellants were not secure tenants of Lambeth. In December 2003 he struck out the alternative human-rights defence.

The appeals raised whether the Trust had acted as Lambeth's agent; whether Part IV of the Housing Act 1985 preserved a secure sub-tenancy after termination of the intermediate interest; whether the tenancies bound Lambeth; and whether Articles 8 and 14 or Article 1 of the First Protocol supplied a defence to possession.

1. The appeals were dismissed. The Trust did not act as Lambeth's agent when granting the appellants their tenancies. The singles scheme was distinct from Lambeth's scheme for the statutorily homeless. Under the singles scheme, the Trust selected occupiers, set charges, decided upon eviction, undertook repairs and received its own funding. Properly construed in its factual matrix, the 1986 agreement confirmed that the Trust acted as principal and on its own account.

2. A secure tenancy under sections 79–81 of the Housing Act 1985 requires one tenancy directly connecting a landlord satisfying the landlord condition with a tenant satisfying the tenant condition. Security is grafted onto the contractual tenancy. A secure sub-tenancy continues while the intermediate tenancy exists and the relevant conditions remain satisfied. It ceases when the sub-tenancy or a necessary condition ceases to exist. Section 82 restricts termination by the tenant's landlord; it does not prevent a person with title paramount, who is not that landlord, from recovering possession.

3. Section 621 does not convert the superior landlord into the sub-tenant's landlord or preserve the sub-tenancy against the superior title. It merely ensures that a tenancy may qualify although its landlord is itself another person's tenant. Any wider protection would require legislation.

4. The rule preserving a sub-tenancy upon surrender of a head tenancy did not apply by analogy to termination of the Trust's licence. That rule concerns estates in land. The appellants' Bruton tenancies did not confer estates binding Lambeth. Neither replacement of the licence by the 1995 head-leases nor termination of those leases gave the appellants greater proprietary rights than the Trust had granted them.

5. Under Harrow London Borough Council v Qazi [2003] 3 WLR 792, an unqualified domestic-law right to possession satisfies Article 8(2). No further proportionality assessment was required. A decision by a public authority to seek possession remains open to challenge under ordinary administrative law principles, but no arguable unlawfulness or Wednesbury unreasonableness was pleaded.

6. Article 1 of the First Protocol did not enlarge the content of the appellants' rights. Their possession was inherently vulnerable to lawful termination of the intermediate lease. Its termination through Lambeth's exercise of its proprietary rights therefore supplied no defence.

1. Court of Appeal (Civil Division): The appeals were dismissed. The rulings that the appellants were not Lambeth's secure tenants and that the human-rights defence should be struck out were upheld: [2004] EWCA Civ 926.

2. Central London County Court: His Honour Judge Cooke ruled on 13 December 2002 that the appellants had no secure tenancies enforceable against Lambeth. On 19 December 2003 he struck out the alternative human-rights defence.