Summary

For the purposes of the exception to the creation of a secure tenancy in the Housing Act 1985 Sch.1 para.6 it was the position between the lessor and the local authority that was important in deciding whether the property had been leased with vacant possession. Paragraph 6(b) required the lease to contain one single provision that the lessor obtain vacant possession either on the expiry of a specified term or when required.

Facts

The appellant (H) appealed against a possession order made in favour of the respondent local authority. A private property owner had leased a flat, through successive leases, to the local authority with vacant possession for use by it as temporary housing accommodation in accordance with the Housing Act 1985 Sch.1 para.6 . Each lease had provided for the lessor to obtain possession at the end of the term. The local authority had granted a sub-tenancy to H, but later commenced possession proceedings due to rent arrears. The district judge decided that the exception in para.6 applied so that H did not have a secure tenancy and made a possession order. H argued that the exception in para.6 did not apply because (1) the requirement in para.6(a) for the property to have been leased to the local authority with vacant possession had not been fulfilled because H had been in possession of the property when the lease had been renewed; (2) the requirement in para.6(b) for the lease between the lessor and the local authority to include a provision for the lessor to obtain vacant possession "on the expiry of a specified term or when required" by the lessor had not been fulfilled because it required a single provision dealing with both alternatives.

Held

(1) Paragraph 6(a) was only concerned with the position between the lessor and the local authority. The head lease between those parties showed that the flat had been leased to the local authority with vacant possession and H's actual occupation at any given time was irrelevant. (2) The opening words of para.6(b) were more suggestive of a single provision for obtaining vacant possession either on the expiry of a specified term or when required, rather than of two alternative provisions. If there were two alternative provisions the second would be otiose, since every lease effectively provided for the lessor to obtain vacant possession on the expiry of a specified period.

Appeal allowed.