Banjo v London Borough Of Brent [2005] EWCA Civ 292

Case No B/2004/1535

[2005] EWCA Civ 292

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WILLESDEN COUNTY COURT

HIS HONOUR JUDGE COPLEY

W1302582

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 17 March 2005

Before

LORD JUSTICE THORPE

LORD JUSTICE CHADWICK

LORD JUSTICE BUXTON

Between

BANJOClaimant/

(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Martin Russell (instructed by The Borough Solicitor, Town Hall Annexe, Forty Lane. Wembley, HA9 9HD) for Appellant

Mr James Hanham (instructed by J D Spicer & Co of 140 Kilburn High Road, London NW6

4JD) for Respondent

Judgment

[1]This is an appeal from an order made on 6 July 2004 by His Honour Judge Copley, sitting in Willesden County Court, in proceedings brought by Mr Olatunji Banjo against the London Borough of Brent.

[2]The claimant in these proceedings, Mr Banjo, is the occupier of a dwelling house at 26 Claremont Road, London W9. He has lived there since the early 1970’s. At first he occupied as sub-tenant of Aggrey Housing Limited, a housing association which, itself, held under a long lease for the residue of a term of 96 years from 29 September 1884. The reversion to that lease had become vested in Borough. In 1974 Mr Banjo acquired that long-leasehold interest from his immediate landlord. Thereafter, he held as tenant of the Borough for the remaining term of the lease. The rent payable under the lease was £6.50 per annum, payable half yearly in March and September. The contractual term of the lease expired on 28 September 1980. Mr Banjo has remained in occupation since that date. He has paid no rent. On 8 February 2002 the Borough gave notice of its intention to take proceedings to recover possession.

[3]The present proceedings were commenced by the issue of a claim form on 1 May 2003. By his claim Mr Banjo sought a declaration that he was entitled to purchase the freehold of the premises at 26 Claremont Road under the provisions of the Leasehold Reform Act 1967 and an order requiring the Borough to comply with its obligations under that Act and to convey to him the freehold estate in the property. In support of that claim he relied on a notice served under section 5 of the 1967 Act as long ago as 30 January 1980. He pleaded(i) that the Borough had failed to serve a notice in reply to that notice within the period of two months prescribed by that Act, or at all, and

(ii) that he had at all times been ready, willing and able to accept a conveyance of the freehold.

[4]The judge dismissed that claim. He found, first, that the tenant’s claim to buy had been admitted by a notice served by the landlord on 6 February 1980; second, that the landlord had made an offer (on 9 March 1980) to transfer the freehold interest at £11,000; and, third, that after considerable delay - attributable, he thought, to Mr Banjo’s failure to find funds to complete the purchase - the claim to buy had been withdrawn in March 1982. The judge held that the claim to buy was barred by limitation and, in so far as relevant, by equitable principles of laches.

[5]There is no appeal against the judge’s order dismissing the claim. The matter comes before this Court because the judge also dismissed the Borough’s Pt 20 claim for possession. That claim is put, in the pleading served on behalf of the Borough on 6 June 2003, in these terms. “10. By virtue of Schedule 3 paragraph 3(1) of the 1967 Act the lease expired on 6 July 1992, three months following determination of the Claimant’s claim to acquire the freehold by limitation.11. The claimant has remained in possession as a trespasser since that date.

12. Brent claims possession of the Premises together with arrears of ground rent at a rate of £6.50 per annum from 1 May 1991 until expiry of the lease and thereafter until possession is delivered up damages at a rate to be assessed being the open market rental value of the Premises.” Those paragraphs must be read with paragraph 7 of the defence:

“7. 0n or about 6 April 1980 by virtue of section 5 and Schedule 3 paragraph 7 (5) of the 1967 Act [the tenant] became entitled to enforce that right [to enfranchise]. That right is a speciality within the meaning of the Limitation Acts and as such no action lies to enforce it following the expiry of the period of limitation laid down therefor in the Limitation Acts namely 12 years from its having arisen.”

[6]Paragraph 3(1) of Schedule 3 to the 1967 Act is in these terms (so far as material):

“(1) Where a tenant makes a claim to acquire the freehold . . . of any property, then during the currency of the claim and for three months thereafter the tenancy in that property shall not terminate . . . by effluxion of time . . .; but if the claim is not effective, and but for this sub-paragraph the tenancy would have so terminated before the end of those three months, the tenancy shall so terminate at the end of the three months.”

[7]6 July 1992 is, of course, the date which is three months after the date on which the limitation period of twelve years (which, as the judge held, was the period of limitation applicable to the claim to enforce the right to enfranchise) would have expired if the right to enforce the claim to enfranchise under the Act arose on 6 April 1980 – as alleged in paragraph 7 of the defence. So much was common ground before the judge.

[8]The defence to the landlord’s claim for possession is pleaded at paragraphs 10, 11 and 12 of the Defence to Part 20 Claim:

“10. . . . at all times since 6th July 1992 the Claimant has occupied the Premises as a secure tenant of the same within the meaning of Part IV of the Housing Act 1985 and he continues to so occupy the Premises particulars The Claimant is the yearly periodic tenant of the Premises at a rent equal to the rent reserved by the Lease namely £6.50 per annum 11. In the premises paragraph 11 of the Part 20 Claim is denied. 12. Further, by reason of the Claimant’s failure to serve a notice complying with the provisions of section 83(2) of the Housing Act 1985, the Part 20 Claim is a nullity and should be dismissed.”

The Claimant is the yearly periodic tenant of the Premises at a rent equal to the rent reserved by the Lease namely £6.50 per annum

[9]The judge reminded himself that Mr Banjo’s tenancy under the long lease was not a secure tenancy – see section 79(2)(a) of, and paragraph 1 of schedule 1 to, the Housing Act 1985. So that this was not a case in which the tenant could rely on the provisions of section 86 (1) of that Act to assert that he had been in occupation since 1980 – or 1992 – as a secure periodic tenant. And he noted that section 1 of the Landlord and Tenant Act 1954 – which gives the protection of the Rent Act 1977 and the Housing Act 1988 to tenants who hold over after a long lease – could not assist the tenant in the present case because those Acts have no application to tenancies of which the landlord is the local authority.

[10]The judge held that, on the determination of the long lease – which, as he thought, occurred on 6 July 1992 by virtue of paragraph 3 (1), schedule 3 to LRA 1967 – the tenant remained in occupation as a tenant at will. On that basis he held that the tenancy was a secure tenancy for the purpose of the Housing Act 1985. He reached that conclusion because, as he held, it was a tenancy in relation to which both the landlord condition in section 80 of that Act and the tenant condition in section 81 were satisfied.

[11]Permission to appeal on the issue whether or not Mr Banjo was a secure tenant was granted by this Court (Lord Justice Mummery) on 10 November 2004. The short point raised by the grounds of appeal is that the judge failed to appreciate that the true effect of section 86 of the Housing Act 1985 is that no secure tenancy can arise by reason only of continued occupation following the determination of a fixed term tenancy in a case where the fixed term was for more than 21 years. The tenant’s response is that section 86 of the 1985 Act does not, of itself, purport to create security of tenure: it does no more than provide a mechanism by which secure fixed term tenancies become secure periodic tenancies upon determination of the contractual term by effluxion of time or forfeiture. There is nothing in section 86 which prevents a secure tenancy from coming into existence under section 79 of the Act if it would otherwise do so.

[12]It is, I think, convenient to begin by considering, first, when the fixed term tenancy under the long lease came to an end; and, second, by what right or interest, under the general law, the tenant continued in occupation thereafter. That is the base from which to consider whether the tenant is entitled to security of tenure or other protection under the Housing Act 1985.

[13]As I have said, the landlord’s pleaded case was that the fixed term tenancy under the long lease came to an end on 6 July 1992. The better view, I think, is that advanced in the skeleton argument prepared on behalf of the tenant for this appeal. The fixed term came to an end on or about 17 June 1982. In this Court counsel for the landlord did not seek to argue otherwise.

[14]The phrase “ the currency of the claim” in paragraph 3(1) of schedule 3 to the Leasehold Reform Act 1967 must be read with paragraph 5(1)(c) of that schedule:

“References to the currency of a claim shall be taken as references to the period from the giving of a notice which has effect or would, if valid, have effect to the time when the notice is effective or ceases to have effect, or (not being a valid notice) is set aside by the court or withdrawn or would, if valid, cease to have effect, and those references shall include any period when the notice is suspended.”

[15]In the present case Mr Banjo’s solicitors wrote to the Borough on 17 March 1982 in these terms:

“We refer to your letter of the 11th March. Unfortunately Mr Banjo, although he has tried desperately, has been unable to obtain mortgage finance. We were wondering whether you would reconsider assisting our client by granting him a mortgage, if not then he would have to withdraw his application.”

There was no response to the suggestion that the Borough might grant Mr Banjo a mortgage. There appears to have been no communication at all between the parties or through solicitors for the next 17 years. The proper inference, I think, is that the claim to enfranchise was withdrawn shortly after the letter of 17 March 1982. The tenant withdrew his application because he was not in a position to proceed. On that basis the date of termination of the tenancy under the long lease was some 3 months after that date.

[16]In a supplementary skeleton argument, dated 14 February 2005, counsel for Mr Banjo submitted that that, if the fixed term came to an end in June 1982, his client had a complete defence to the claim for possession under section 15 of the Limitation Act 1980. I do not understand that submission to have been pursued at the hearing of the appeal. But, if I may say so, the point was misconceived. The landlord’s right to recover possession did not arise until the tenancy at will (which arose from the tenant’s continued occupation following the termination of the original tenancy) had been determined by a request or demand that possession be given up.

[17]As I have said, Mr Banjo remained in occupation of the property, paying no rent. The Borough took no steps to evict him. The only inference that can be drawn is that, having been in possession as tenant under the long lease, Mr Banjo remained in possession with the consent of the landlord. The effect, under the general law, is that following the termination of the fixed term he held over as tenant at will. The position is stated by the editors of the title “Landlord and Tenant” in Halsbury’sLawsofEngland (4th Edition, volume 27(1) at paragraph 171) in these terms:

“A tenant who, with the landlord’s consent, remains in possession after his lease has expired is tenant at will until some other interest is created, either by express grant or by implication by the payment and acceptance of rent.”

[18]As that statement recognises, it may well be that where, in response to his landlord’s demands for periodic rent, a tenant who remains in possession after his lease has expired continues to pay the rent demanded, the law will imply a new periodic tenancy – see the observations of Lord Justice Nicholls in Javad v Mohammed Aqil

[1991] 1 WLR 1007

, 1012E-F. But that is not this case. Mr Banjo paid no rent after the end of the contractual term of the long lease; and, so far as appears from the evidence, the Borough did not demand (or take any steps to enforce) payment of rent. In a witness statement which he signed on 16 December 2003 Mr Banjo accepted that that was the position:

“I went to the Defendant’s offices many times after I stopped receiving demands for rent from the defendant because I was worried about not paying the rent. I suppose this would probably have been from the early 1980s. I was told that I should wait for a demand notice to be sent to me before I paid. However I never received any such notice;”

[19]Section 86 of the Housing Act 1985, as it seems to me, was enacted with a view to altering the position under the general law in those cases to which the section apples. The section is in these terms:

“(1) Where a secure tenancy (“the first tenancy”) is a tenancy for a term certain and comes to an end – (a) by effluxion of time, or (b) . . . a periodic tenancy of the same dwelling-house arises by virtue of this section, unless the tenant is granted another secure tenancy of the same dwelling-house (whether a tenancy for a term certain or a periodic tenancy) to begin on the coming to an end of the first tenancy. (2) Where a periodic tenancy arises by virtue of this section – (a) the periods of the tenancy are the same as those for which rent was last payable under the first tenancy, and (b) the parties and the terms of the tenancy are the same as those of the first tenancy at the end of it; except that the terms are confined to those which are compatible with a periodic tenancy and do not include any provision for re-entry or forfeiture.”

But, as the judge recognised, the present case is one to which section 86 of the 1985 Act does not apply. (a) the periods of the tenancy are the same as those for which rent was last payable under the first tenancy, and (b) the parties and the terms of the tenancy are the same as those of the first tenancy at the end of it;

[20]The section does not apply because the fixed term tenancy under which Mr Banjo held the property until June 1982 was not, itself, a secure tenancy. It was a “long tenancy” for the purposes of paragraph 1 of schedule 1 to the Act – see section 115(1)(a) of the 1985 Act. A long tenancy within paragraph 1 of schedule 1 cannot be a secure tenancy – see section 79(2)(a) of that Act. So, when the fixed term tenancy (as extended by paragraph 3(1) of schedule 3 to the Leasehold Reform Act 1967) came to an end by effluxion of time in June 1982, no periodic tenancy arose by virtue of section 86 of the Housing Act 1985. The position remained as it was under the general law.

[21]The judge accepted that Mr Banjo remained in possession as tenant at will following the termination of the long lease; which, as was common ground before him, he took to have expired in July 1992. But he held that Mr Banjo was entitled to the protection of Part IV of the Housing Act 1985. His reasoning appears from paragraph 34 of his judgment:

“It appears common ground that what arose on the expiry of the 1886 lease, as extended, was a tenancy at will, and to the extent that it may not be common ground, I am quite satisfied that it was a tenancy at will and I so hold. Equally I am satisfied that the requisite conditions of the Housing Act 1985 being met, the tenancy was a secure tenancy. Even if I were wrong about the tenancy being a secure tenancy by virtue of the landlord and tenant conditions applying, I am quite satisfied that I should apply the analogy of the case of Chamberlain v Farr and hold that by parity of reasoning where, as that case held, the protection of the equivalent of the Rent Act should apply to a tenancy at will in circumstances where the landlord is a local authority, the protection, or more properly the security, of the Housing Act should apply . . .”

[22]It is clear that the judge thought that it was enough that the tenancy at will, which arose on the termination of the long tenancy, had satisfied the conditions described in sections 80 and 81 of the 1985 Act as the landlord condition and the tenant condition. He took the view that a tenancy which satisfied those conditions was a ‘secure tenancy’ for the purposes of Part IV of the Act – see section 79(1). That, as he thought, led to the conclusion that the tenant was entitled to the security of tenure which Part IV of the Act provides.

[23]In reaching that conclusion the judge overlooked the basis upon which Part IV of the Housing Act 1985 provides security of tenure. The relevant provisions, in this context, are found in sections 82 to 84. So far as material, the sections are in these terms: “82(1) A secure tenancy which is either –(a) a weekly or other periodic tenancy, or

(b) a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order of the court for possession of the dwelling- house . . . (2) Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order. . . . 83(1) The court shall not entertain proceedings for a dwelling-house let under a secure tenancy or proceedings for the termination of a secure tenancy unless – (a) the landlord has served a notice on the tenant complying with the provisions of this section, or (b) the court considers it just and equitable to dispense with the requirement of such a notice. . . . 84(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2. . . .” (a) a weekly or other periodic tenancy, or (b) a tenancy for a term certain but subject to termination by the landlord, (a) the landlord has served a notice on the tenant complying with the provisions of this section, or (b) the court considers it just and equitable to dispense with the requirement of such a notice.

[24]The statutory scheme - first enacted as sections 32 to 34 in Chapter II, Part I of the Housing Act 1980 - was explained by Lord Justice Brandon in Harrison v Hammersmith and Fulham London Borough Council

[1981] 1 WLR 650

, 662A-C. After describing the position under the Rent Acts, he said this:

“By contrast, in the Act of 1980 the legislature went about the matter in quite a different way. It abolished altogether the common law principles on which contractual tenancies, both periodic and for a term certain, could be brought or come to an end. It did this by providing, first, that, on the expiry of a contractual tenancy for a term certain, there should come into existence a periodic tenancy in its place, unless a further contractual tenancy for a term certain should be granted: section 29(1) and (2) [now section 86 of the 1985 Act]; and, secondly, that a periodic tenancy, whether having that character originally, or coming into being on the expiry of a term certain, should not be capable of being brought to an end by a landlord except by the latter obtaining an order of the court for possession: section 32(1), or, in cases where provisions for re-entry or forfeiture are relied on, an order terminating the secure tenancy: section 32(2).”

[25]Security of tenure, under Chapter II, Part I of the 1980 Act and its successor, Part IV of the 1985 Act, has depended on there being a tenancy which cannot be brought to an end by the landlord except by obtaining an order of the court for possession. The requirement that the court shall not entertain proceedings for possession unless the landlord has first served a statutory notice, now in section 83(1) of the 1985 Act, and the limitations on the power of the court to make an order for possession, now in section 84(1) of, and schedule 2 to, that Act, apply only in relation to “a dwelling-house let under a secure tenancy”. The condition upon which the security of tenure which those provisions provide is based is that there is a tenancy of the dwelling-house – or a licence to occupy (see section 79(3) of the Act) – at the relevant time.

[26]That condition will be satisfied where the tenant holds under a periodic or fixed term tenancy, because that tenancy cannot be brought to an end without an order of the court – section 82(1). But section 82(1) of the Act does not prevent the landlord from bringing to an end, under the general law, a tenancy which is not a periodic or fixed term tenancy. In particular, section 82(1) does not prevent the landlord from determining a tenancy at will without any order of the court. So the condition will not be satisfied where the tenant held under a tenancy at will which has been determined before proceedings for possession are commenced. In such a case, Part IV of the 1985 Act does not provide security of tenure.

[27]I am not persuaded that the case can be brought within the security provided by Part IV of the 1985 Act by some process of reasoning based on the decision of this Court in Chamberlain v Farr [1943] 112 LJKB 206, to which the judge referred. That was a case in which the prospective purchaser of a house (No 1 Falling Lane, Yiewsley) under construction had agreed that, if he were allowed into occupation before completion, he would occupy, pending completion, as tenant at will, paying a weekly sum. In the event, the house not being ready, he was allowed into possession of another house (No 7 Falling Lane) in the same road, paying a lesser sum. Subsequently the landlord sought determination of a standard rent of No 7 Falling Lane under section 11 of the Rent and Mortgage Interest Restrictions Act 1928. The question for decision was whether standard rent was to be determined by reference to the actual rent payable in respect of No 7 Falling Lane on 1 September 1939, or was to have regard to standard rents of similar houses in the neighbourhood – section 6 of the Rent and Mortgage Restrictions (Amendment) Act 1933, as amended by section 3 of the 1939 Act. That turned on whether No 7 Falling Lane was “let” on 1 September 1939. This Court held that it was. It was immaterial, in that context, whether the tenancy was a tenancy at will or a weekly tenancy – (ibid, at 206) Lord Greene, Master of the Rolls, said this (at 208):

“. “Once it was pointed out that it was a tenancy and that this was a rent, the necessary result . . . follows that that was the figure at which the standard rent ought to have been determined.”

[28]The principle that the Rent Acts applied to premises let on a tenancy at will was treated as settled in this Court when the point arose, a few years later, in the context of a landlord’s claim for possession. In Francis Jackson Developments Ltd v Stemp

[1943] 2 All ER 601

, Lord Greene, Master of the Rolls, said this (at 603E-F):

“In my opinion this tenancy was a tenancy at a rent, and the result is that the Acts apply. I do not take up time by referring to the authorities which were cited to us, which at any rate settle, so far as this court is concerned, that the Acts do apply to a tenant at will.”

That case provides a closer analogy to the present on its facts than Chamberlain v Farr (supra) because, in that case, the landlord had served a notice determining the tenancy at will before commencing proceedings for possession – (ibid, 602C).

[29]The reason why those decisions under the Rent Acts provide no assistance in the present case was explained by Lord Justice Brandon in Harrison v Hammersmith Council (supra, 661F-662A) in the paragraph which immediately precedes that which I have already set out:

“In the earlier Rent Acts the legislature did not seek to interfere with the common law principles on which contractual tenancies, whether periodic or for a term certain, could be brought to an end. In the case of periodic tenancies the legislature left landlords free to bring them to an end by the service and expiry of valid notices to quit. In the case of tenancies for a term certain, the legislature left such tenancies to come to an end automatically by effluxion of time. What the legislature did, however, in order to protect the person who had been a contractual tenant before his contractual tenancy came to an end, was to create a new relationship between the tenant and his former contractual landlord, which Scrutton LJ described . . . in Remon v City of London Real Property Co Ltd [1921] 1 KB 49,58, as a ‘statutory tenancy’, the parties to which were the former contractual tenant, from then on described as a ‘statutory tenant’, and the former contractual landlord or his successor in title. . . .”

Lord Justice Brandon went on to explain (ibid, 662H-663B):

“In Remon’s case the Court of Appeal felt bound to give strained and unnatural meanings to perfectly ordinary words, such as ‘tenant’, ‘tenancy’ and ‘let’. It did so for one reason and one reason only, namely that unless those words were given strained and unnatural meanings, the manifest purpose of the Act of 1920 – to protect from eviction persons whose contractual tenancies had been brought or come to an end – would be defeated. In the three cases with which these appeals are concerned, I do not see any compelling reason why the court should follow its predecessor in Remon’s case by giving a strained and unnatural meaning to the expression “let under a secure tenancy” as used in sections 33(1) and 34(1) of the Act of 1980. The ordinary and natural meaning of the expression is ‘let under a secure tenancy at the date to which each subsection relates’, that is to say the date of commencement of an action for possession, in the case of section 33(1), and the date of deciding whether an order for possession should be made in such an action in the case of section 34(1).”

[31]Whether or not Part IV of the 1985 Act has any application to a tenancy at will – in circumstances where the landlord condition (section 80) and the tenant condition (section 81) are both satisfied - it is clear that Part IV gives no security of tenure in circumstances where (as will always be the case) the tenancy at will has been brought to an end before the date at which the court decides whether or not to make an order for possession. It will always be the case that the tenancy will have been brought to an end before the date at which the court decides whether or not to make an order for possession, because (if not already determined before proceedings are commenced) the issue of proceedings for possession will, of itself, bring the tenancy at will to an end.

[32]That is this case. On a true analysis, Mr Banjo was in possession of the property at 26 Claremont Road from June 1982 until February 2002 as a tenant at will. The tenancy at will was brought to an end by the Borough’s letter of 8 February 2002. That letter was sufficient notice that the landlord was no longer content for him to remain in possession. The position is explained in Halsbury (ibid, atparagraph172):

“A tenancy at will is determinable by either party on his expressly or impliedly intimating to the other his wish that the tenancy should be at an end. . . . The issue of a writ claiming possession is a sufficient demand for possession to bring the tenancy to an end. The statutory minimum period of four weeks’ notice to quit in respect of premises let as a dwelling does not apply to a tenancy at will.”

If further authority is needed, it is found in the decision of this Court in Crane v Morris

[1965] 1 WLR 1104

, 1108C, 1109F.

[33]That conclusion is a sufficient answer to the tenant’s claim to security of tenure and protection from eviction under Part IV of the Housing Act 1985. No periodic tenancy arose on the determination of the long lease in June 1982 – either under section 86 of the 1985 Act or by implication from the demand, payment or acceptance of rent. The tenancy at will which did arise, under the general law, was determined in February 2002. Thereafter Mr Banjo remained in possession as trespasser – he was neither tenant nor licensee. Section 84 of the Act had no application. The judge was wrong to refuse the order for possession which the Borough had sought.

[34]I should mention three other matters. First, as I have indicated, there must be some doubt whether or not Part IV of the 1985 Act can have any application to a tenancy at will, notwithstanding that the landlord condition (section 80) and the tenant condition (section 81) are both satisfied. Sections 82 to 85 will not (in practice) provide security of tenure for the reasons that I have already explained. Sections 87 to 90 will not provide rights of succession - see, in particular, section 89(1) (“this section applies where . . . the tenancy is a periodic tenancy”) and section 90(1) (“this section applies where . . . the tenancy is a tenancy for a term certain”). And it is difficult to see how (in practice) the other provisions in Part IV can have effect against the wishes of the landlord in circumstances that the landlord has an unrestricted right to bring the tenancy to an end at will. These matters point towards a conclusion that, notwithstanding that the landlord condition (section 80) and the tenant condition (section 81) are both satisfied, Parliament did not intend that a tenancy at will should be “a secure tenancy” for the purposes of Part IV of the 1985 Act. But it is unnecessary to decide that question in these proceedings; and I do not do so. It should be kept in mind that much the same question could arise under Part V of the Act, which confers the right to buy on secure tenants. Those questions can be decided when they arise.

[35]Second, Parliament plainly did intend to withhold the security of tenure provided by Part IV of the 1985 from tenancies which were long tenancies as defined in section 115(1) of the Act – section 79(2)(a) and paragraph 1 of schedule 1. Seen in that context, it would be surprising if a tenant holding over at will at the end of a long tenancy were to obtain a security of tenure (under Part IV of the Act) which he did not have while the long tenancy continued. As I have sought to explain, the Act does not have that effect.

[36]Third, it must be kept in mind that, until the enactment of the Housing Act 1980, local authority tenants (and the tenants of housing associations and housing co-operatives) did not enjoy security of tenure under statute. It was thought, perhaps, that the landlord could be expected to act responsibly and that statutory protection was not required. In particular, local authority tenants - and the tenants of other landlords engaged in the provision of social housing - did not enjoy the statutory protection which was afforded to the tenants of private landlords by the Rent Act 1977 and its predecessors – sections 14, 15 and 16 of the 1977 Act. That principle has been carried into the Housing Act 1988, which provides that local authority tenancies, and other tenancies where the landlord is engaged in the provision of social housing, cannot be assured tenancies for the purposes of Part I of that Act – section 1(2) and paragraph 12(1) of schedule 1. Consistency with that principle requires – and “the qualifying condition” set out in section 2(1) of the Landlord and Tenant Act 1954 ensures – that a local authority tenant who has held under a long tenancy at a low rent does not have the protection of the Rent Act (or the Housing Act 1988) upon the termination of the long tenancy.

[37]The facts in the present case are, I suspect, unusual; in that it is unusual(i) to find a dwelling house held on a long tenancy from a local authority landlord and

(ii) to find a tenant holding over following the termination of a long tenancy without periodic rent being demanded or paid. But this is not, I think, a case in which unusual facts point to a lacuna in the law which the courts must strive to fill. The law is clear. Parliament did not intend to provide security of tenure in cases of this nature.

[38]I would allow this appeal.

[39]I agree that the appeal should be allowed for the reasons given by my Lord. I add some short words of my own on one point only.

[40]The 1985 Act is a consolidation Act. Part IV, in which sections 79-86 are placed, consolidates Chapter II of Part I of the Housing Act 1980. That Part I introduced a revolution in the law of public authority housing by giving, as the long title put it, security of tenure and the right to buy their homes to tenants of local authorities and other bodies. The unifying factor between Chapter I (the right to buy) and Chapter II (security of tenure and the rights of secure tenants) was the new concept of a secure tenancy, enjoyed by tenants of the erstwhile “council housing”, who previously had held rights only in public law. None of this has changed, nor by a consolidating statute could it have been changed, in the 1985 Act. Only the arrangement isdifferent, Part IV creating the tenancy rights of a secure tenant, Part V giving him the right to buy.

[41]All of this makes it extremely unlikely that Parliament in 1980 intended to include within the class of secure tenants people who were merely tenants at will. First, asthis court pointed out in Harrison v Hammersmith Council

[1981] 1 WLR 650

at p661C, the purpose of Chapter II of Part I of the Act of 1980 was “the social one of giving to tenants in the public housing sector, so far as reasonably practicable, the same kind of protection from being evicted from their homes without good and sufficient cause as had been enjoyed by tenants in the private housing sector for many decades under the Rent Acts.” To give to a tenant at will, whose tenancy is in principle terminable by the service of proceedings, the protection now to be found in Part IV of the 1985 Act would be greatly to increase his security when compared with that available in the private sector; because, for the reasons given by my Lord in his paragraphs 27-31, the jurisprudence relating to tenancies at will under the Rent Acts as found for instance in Chamberlain v Farr (1942) LJKB 206, with which we were much pressed, cannot be read across into the 1985 Act. Second, it seems most unlikely that entitlement to the right to buy provisions, a necessary incident of a secure tenancy, was intended to extend to a relationship as fugitive as that of a tenant at will, bearing in mind in particular that the right to buy, and the calculation of the purchase price, depend on the length of time for which the public sector tenancy has been held.

[42]These considerations are reinforced by the extreme difficulty of fitting the detailed requirements of Part IV into the basic nature of a tenancy at will. Large parts of the code, including the provisions as to succession, assignment and, as my Lord has pointed out, even the provisions in section 82 as to security of tenure, simply cannot be applied to a tenancy at will because they are drafted exclusively in terms of either a periodic tenancy or a tenancy for a term certain. I agree with my Lord that that is enough in itself to cause the claim for security in the present case to fail.

[43]For the reasons already indicated I would be minded to go further and hold that a tenancy at will cannot be a secure tenancy at all. We did not, however, hear full argument on that point and, for that reason, I am content like my Lord to rest my decision on the more specific grounds set out by him.

[44]I agree with both judgments. (Order does not form part of approved judgment)