Francis v Brent Housing Partnership Ltd & Ors

An outright possession order terminates a secure tenancy on the date specified. The parties cannot revive or vary that effect by agreement, although they may enter a new tenancy or licence; its creation requires clear evidence and will not readily be inferred from tolerated occupation or rent payments. A contract that mistakenly describes an old tenancy as continuing may nevertheless be construed, in its commercial and factual context, as creating or recognising a new secure tenancy. The court should give effect to the parties’ substantive commercial intention where no relevant mistake is proved. A statutory replacement-tenancy scheme cannot rewrite prior occupation or create a tenancy without satisfaction of its statutory conditions.

Caroline Francis had originally held a secure tenancy of No 25C, but an earlier outright possession order had been made. She remained in occupation as a tolerated trespasser. In 2005 Brent moved her to No 1 under a written decant agreement that described her as a secure tenant of No 25C and provided for her return after repairs. Brent later let No 25C to Vinette Williams. On a preliminary issue, the Central London County Court held that Ms Francis had no tenancy of No 25C, although she had a secure tenancy of No 1. The appeal concerned whether the decant agreement created or recognised a tenancy of No 25C and, alternatively, whether the Housing and Regeneration Act 2008 replacement-tenancy scheme did so.

Appeal allowed. Lord Justice Rimer gave the judgment, with which Lord Justices Beatson and Laws agreed. The preliminary issue was answered by declaring that, on signing the decant agreement, Ms Francis became a secure tenant of No 25C and remained a tenant of it after moving to No 1.

1. Under section 82(2) of the Housing Act 1985, the 1991 possession order terminated the original secure tenancy on the date fixed for possession. Under section 85, revival required a court order postponing that date. The parties could not revive or vary the order contractually. They could, however, create a new tenancy or licence, though its creation would not readily be inferred from tolerated occupation, consent, rent payments or forbearance. This high evidential hurdle was reflected in Burrows v Brent London Borough Council [1996] 1 WLR 1448, Newham LBC v Hawkins [2005] HLR 42 and Lambeth LBC v O’Kane [2006] HLR 2. The repair obligation added no weight; Lambeth LBC v Rogers (1999) 32 HLR 361 illustrated why it did not establish a new tenancy.

2. The decant agreement expressly recited that Ms Francis was a secure tenant of No 25C and its scheme depended on that status, including for the possible use of Ground 8 of Schedule 2 to the Housing Act 1985. Although the reference to the 1981 tenancy as continuing was formally inaccurate, there was no evidence that the agreement was vitiated by relevant mistake. Applying the reasonable-person approach in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, the agreement was construed in light of its background and commercial objective. Its substantive effect was to recognise Ms Francis as a secure tenant on the applicable terms of the former tenancy.

3. Alternatively, assuming that no secure tenancy of No 25C existed after 1991, the statutory replacement-tenancy argument failed. The home condition in paragraph 16 of Schedule 11 to the Housing and Regeneration Act 2008 was not met because No 1 had become Ms Francis’s only or principal home. Paragraph 21 operated only after a new tenancy had arisen under paragraph 16. It treated old and new tenancies of the same dwelling-house as continuous for specified purposes, including Ground 8, but did not create a tenancy or rewrite the prior status of No 25C. The secure tenancy of No 1 was not nullified by the alleged mistake.

• Court of Appeal (Civil Division) allowed the appeal and declared that Ms Francis became and remained a tenant of No 25C: [2013] EWCA Civ 912.
• Central London County Court, His Honour Judge Moloney QC, held on the preliminary issue that Ms Francis had a secure tenancy of No 1 but no tenancy of No 25C.