| HOUSING — Secure tenancy — Homeless person in priority needs — Local authority taking lease from housing trust to accommodate homeless people under statutory duty — Local authority seeking possession — Whether tenancy secure tenancy — Whether head lessee being private landlord relevant reason to provide security to tenant
Westminster City Council v Boraliu
CA: (Chadwick, Gage and Lawrence Collins LJJ): 2 November 2007
The tenancy of a dwelling house granted by the local authority to a homeless person in priority need did not confer a secure tenancy on the tenant even though the local authority had originally taken over a lease of the dwelling house from a private housing association for the purpose of letting it to persons in priority need of housing accommodation.
The Court of Appeal so stated allowing an appeal of the claimant, Westminster City Council, from the decision of Judge Knight QC dated 24 August 2007 sitting in the Central London County Court when he allowed an appeal of the defendant, Htixhe Boraliu, from the decision of Deputy District Judge Harmer dated 6 June 2007 granting an order for possession for the claimant. Judge Knight QC held that para 4 of Sch 1 to the 1985 Act did not apply to the tenancy since the authority itself had taken up the accommodation from a private sector landlord, a housing association, under a lease for letting it for homeless persons and that although para 6 could apply to such demises its requirements had not been met. Although the tenant did not oppose the appeal, the court was asked to give a reasoned judgment since there were several similar cases pending in county courts.
CHADWICK LJ said that s 79 of the Housing Act 1985 provided that a tenancy under which a dwelling-house was let as a separate dwelling was a secure tenancy at any time when the conditions under ss 80 and 81, such as that the landlord was a local authority or cooperative housing corporation and that the tenant was an individual who occupied the dwelling as the principal home, were met. The tenant was let into possession of the flat under what was expressed to be a non-secure tenancy under s 79 although the conditions were satisfied. The tenancy fell within the exception of not only under para 6 of sch 1 as a short term arrangement but also under para 4 for accommodation for homeless persons, which provided that a tenancy granted in pursuance of any function under part VII of the Housing Act 1996 (Homelessness) was not a secure tenancy unless the local housing authority have notified the tenant that the tenancy was to be regarded as a secure tenancy. In February 2005 when the tenancy agreement was made the duties of the housing authority under ss 63, 64 and 68 had been replaced by ss 188, 190 and 200 of the Housing Act 1996. Para 4 of sch 1 was substituted by para 3, sch 17 to the 1996 Act. The judge was wrong to hold that the tenancy granted for homeless person was a secure tenancy on the basis that the local authority itself took up a lease of the property from a housing association, a private landlord. This tenancy fell in para 4 pursuant to Part VII of the 1996 Act and the tenancy granted in 2005 should not be regarded as secure tenancy. The function of the housing authority was to provide accommodation under the 1996 Act. Para 4 conditions were coextensive with para 6. On a proper analysis para 6 extended to circumstances which did not fall in para 4. The landlord was under a duty under part VII of the 1996 would be a landlord within para 6 of what remained of Sch 1 of the 1985 Act. It might include other landlords as well. The tenancies to which para 6 of Sch 1 to the 1985 Act applied included tenancies which were not granted in pursuance of duties under the Homeless Persons Act but were granted to people who might need temporary accommodation under part VII of the 1996 Act. Para 4 of Sch 1 to the 1985 Act survived changes made in later Housing Acts. Parliament did not take the opportunity to reverse the old duty under the 1980, 1985 and 1996 Acts. There was a real purpose for paras 4 and 6 and there was no reason to qualify them, and the judge was wrong to hold that para 4 did not apply to the tenancy.
GAGE and LAWRENCE COLLINS LJJ agreed.
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