Tenancy in UK Law

In all the cases where an occupier has been held to be a licensee there has been something in the circumstances to negative any intention to create a tenancy, such as a family arrangement, an act of friendship or generosity, or such like. In such circumstances it would be obviously unjust to saddle the owner with a tenancy with all the momentous consequences that that entails nowadays when there was no intention to create a tenancy at all.

He suggested that since a tenant would know the basis on which he or she had become a tenant i.e. on the basis that the statutory provisions and procedures of the introductory tenancy scheme applied to it, the rights of the tenant to occupy the premises were simply in accordance with that scheme. It would then follow that the question whether the eviction could be justified under Article 8(2) would not arise.

It is not a preliminary question whether the tenancy has been properly terminated in accordance with its terms. It is under Article 8(2) that the question to be considered is whether an eviction was in accordance with the law, and whether it was necessary for the protection of the rights and freedoms of others.

But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.

One must look at the transaction as a whole and at any indications that one finds in the terms of the contract between the two parties to find whether in fact it is intended to create a relationship of landlord and tenant or that of licensor and licensee. One has first to find out what is the true nature of the transaction and then see how the Act operates upon that state of affairs if it bites at all.

But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.

The action of giving notice to determine a periodic tenancy is in form positive; but both on authority and on the principle so aptly summed up in the pithy Scottish phrase "tacit relocation" the substance of the matter is that it is by his omission to give notice of termination that each party signifies the necessary positive assent to the extension of the term for a further period.