Case study: tenant or licensee?

Javier approached us at an outreach session. He had been issued with a possession claim and his hearing was listed in the next few weeks. The basis of the claim was alleged rent arrears and that the contract had ended. Javier was very distressed as the agents for the property had called the police to assist them in evicting him. Surprisingly the police took his security of tenure more seriously and informed the agents they must obtain a possession order.

On taking further instructions from Javier it appeared what was stated in the possession claim form was incorrect. Javier had lived in the property for longer than had been stated. Furthermore, even though Javier has signed a licence agreement what needed to be determined was what the true agreement between the parties was. Labels are inconclusive, as the homeless will agree to any label to obtain accommodation in a difficult housing market. It appeared that Javier’s agreement had all the hallmarks of a tenancy. The leading case on this topic is Street v Mountford [1985] AC809 House of Lords.

In this case it was decided that for the agreement to be a tenancy there had to be a term at a rent and Javier had to have exclusive possession. The trickiest aspect usually can be what is exclusive possession? This means that the tenant has the right to exclude everyone including the landlord. Based on the presenting information I believed this to be the case.

Javier also stated that he had no rent arrears and had bank statements to demonstrate this. He had been struggling to pay his monthly rent of £800. He earns £1000 a month and so should be entitled to some housing benefit. He had tried to make a housing benefit claim on line but the agents would not provide the landlords details so he could not proceed through the online process. We advised Javier to make a paper claim and if it had the agents details that should be sufficient.

In order to defend the possession claim Javier was referred to a solicitor who granted Legal Aid. Counsels’ opinion will be sought on Javier’s security of tenure. If it is viewed that Javier is tenant then a possession will be granted. Furthermore, he will have a counterclaim for non –protection of his deposit.

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