Banjo v London Borough Of Brent

Where a long fixed-term tenancy is excluded from the statutory definition of a secure tenancy, its expiry does not create a secure periodic tenancy under section 86 of the Housing Act 1985. If the former tenant remains with the landlord’s consent and no rent is demanded or paid, the resulting holding is ordinarily a tenancy at will. That tenancy may be ended under the general law by notice or possession proceedings. Once ended, the former occupier is a trespasser and the statutory notice and possession protections in Part IV do not apply. Rent Act decisions treating a tenancy at will as protected cannot be transferred to the different statutory scheme in Part IV. The court left open whether a tenancy at will can ever be a secure tenancy where the landlord and tenant conditions are met.

Mr Banjo occupied a dwelling under a long lease acquired in 1974. The contractual term expired in 1980, but he remained in occupation without paying rent. He had served an enfranchisement notice under section 5 of the Leasehold Reform Act 1967. The county court dismissed his enfranchisement claim and also dismissed the Borough’s possession claim, holding that he remained a tenant at will who satisfied the landlord and tenant conditions for a secure tenancy under the Housing Act 1985.

There was no appeal against dismissal of the enfranchisement claim. The Borough appealed on whether the tenant at will was entitled to security of tenure and protection from possession proceedings.

Appeal allowed. Chadwick LJ gave the leading judgment. Buxton LJ and Thorpe LJ agreed.

1. The fixed-term tenancy ended about 17 June 1982. The enfranchisement claim had been withdrawn shortly after the tenant’s letter of 17 March 1982. The relevant provisions of the Leasehold Reform Act 1967 extended the tenancy only during the currency of the claim and for three months afterwards.
2. Under the general law, the tenant remained in possession as a tenant at will. The landlord’s consent could be inferred from its failure to demand possession. No periodic tenancy arose because no rent was demanded, paid or accepted. The observations in Javad v Mohammed Aqil [1991] 1 WLR 1007 supported the possibility of implying a periodic tenancy where rent is demanded and accepted.
3. Section 86 of the Housing Act 1985 did not apply. It creates a periodic tenancy only where the first tenancy was a secure tenancy. The expired lease was a long tenancy excluded from that status by section 79(2)(a), Schedule 1 paragraph 1 and section 115(1)(a).
4. Part IV security depends on a tenancy or licence subsisting at the relevant time which cannot be brought to an end by the landlord without a court order. Section 82(1) does not prevent determination under the general law of a tenancy at will. The Borough’s letter of 8 February 2002 ended the tenancy at will. The tenant thereafter occupied as a trespasser, so the statutory notice and possession provisions did not apply.
5. The Rent Act authorities Chamberlain v Farr [1943] 112 LJKB 206 and Francis Jackson Developments Ltd v Stemp [1943] 2 All ER 601 did not assist. Their reasoning arose under a different statutory scheme, which protected former contractual tenants through a statutory tenancy. Harrison v Hammersmith and Fulham London Borough Council [1981] 1 WLR 650 explained the distinction.
6. The court did not decide whether a tenancy at will can ever be a secure tenancy where sections 80 and 81 are satisfied. Buxton LJ indicated that he would have been minded to decide that it cannot, but full argument had not been heard. The possession order was therefore made on the narrower basis that the tenancy had already ended.

The Borough’s possession claim succeeded. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment, with the claimant’s costs dealt with under the Community Legal Services (Costs) Regulations 2000.

• Willesden County Court: His Honour Judge Copley dismissed the enfranchisement claim and the Borough’s Part 20 possession claim. He held that the long lease had ended in 1992, that the claimant remained a tenant at will, and that the tenancy was secure under the Housing Act 1985.
• Court of Appeal (Civil Division): The Borough’s appeal was allowed. The court held that the tenancy at will had ended on 8 February 2002 and ordered possession, with costs directions.