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Stirling v. Leadenhall) rather than adversely, but that none of the terms of the former tenancy apply (Pemberton). This means the landlord can take no action against the ‘tenant’ for any breach of covenant, other than a failure to pay the sums agreed under the agreement, nor can the ‘tenant’ rely on any of the express or implied obligations of the landlord under the former tenancy, for example as to repair. Whatever rights and obligations they have towards each other therefore appear to arise from the fact that the ‘tenant’ has possession (and therefore, as it was held in Pemberton, can bring actions in nuisance against the ‘landlord’) and the fact that the premises remain the ‘tenant’s’ home for the purposes of the Human Rights Act (see further Pemberton). The situation is further complicated, and the artificiality heightened, by the fact that, in the Burrows-type case, the ‘tenant’ (but not, it would seem, the ‘landlord’) can at any time apply to have the possession order discharged, and it seems likely that, if it does so at a time when the terms of the agreement have been complied with, the court will agree. Once this is done, the old secure tenancy will revive with retrospective effect, allowing the parties to take advantage of the former tenancy terms in respect of events that took place during the limbo period (see Rogers). ‘Trespass’ is not, therefore, a wholly satisfactory epithet.

Notes and Questions 17.4

Read Burrows v. Brent London Borough Council [1996] 1 WLR 1448; [1996] 4 All ER 577, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

1Why, according to Lord Browne-Wilkinson, is a tenant holding over after the end of a secure tenancy in a different position from a tenant holding over after the end of any other type of tenancy?

2Lord Browne-Wilkinson describes the secure tenancy as sui generis, and says decisions on other holding-over situations are not helpful here, and Lord Jauncey refers to the occupation as ‘deriving’ from the provisions of the

1985 Act, and refers to the Act as giving the court the power ‘to create a state of statutory limbo’. Does this mean that the status of tolerated trespasser cannot arise in any circumstances other than following on after a secure tenancy?

3Explain how the facts of this case differ from those in Greenwich London Borough Council v. Regan (1996) 28 HLR 469; (1996) 72 P&CR 507. What did the Court of Appeal in Regan decide was the status of the tenant in that particular case?

4 Explain how, according to Lord Browne-Wilkinson, a secure tenancy terminated by an immediate unconditional possession order can be revived after the date specified in the order as the date on which possession must be given up.

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Now we must consider a variation on this situation. Suppose that the facts are identical, except that I am completely honest with you throughout. I tell you that I have no interest in the land which would enable me to grant you a lease, and when I hand over exclusive physical control to you I tell you that what I am granting to you is necessarily a licence, not a lease. What is your position then? At first sight, it might seem quite straightforward. Because of the nemo dat rule, you cannot have a lease. And, because both of us know that I am unable to grant you a lease, and I never pretended that that was what I was doing, there does not seem room for me to be estopped from denying it.

In Bruton v. London & Quadrant Housing Trust [1998] QB 834, CA, the Court of Appeal held that such a situation could not give rise to a tenancy (nor, for reasons which will be considered below, a tenancy by estoppel). However, the House of Lords ([2001] 1 AC 406) disagreed, and concluded unanimously that, although there was no tenancy by estoppel, there was a lease – but one which was not enforceable against third parties.

In order to appreciate the arguments that persuaded the House of Lords, it is necessary to look more closely at the factual context. Local authority landowners do not have the same powers to dispose of their land as absolute owners have. They are given specific statutory powers of disposition, and, if they purport to make a disposition that they have no power to make, the disposition will be void. Local authorities who own residential accommodation do have statutory powers to let it to residential occupiers. As a result of the decision in Street v. Mountford [1985] AC 809, if they do grant possession to residential occupiers, the grant will almost certainly be construed as a tenancy, even if it is called something else. Consequently, the occupier will be entitled to require the local authority to keep the property in repair under section 11 of the Landlord and Tenant Act 1985, and will also be a secure tenant and as such entitled to security of tenure under the Housing Act 1985 as amended. There are circumstances in which local authorities wish to avoid these consequences, and the Bruton case concerned a stratagem designed to enable them to do so.

The stratagem requires two steps to be taken. First, the local authority transfers occupation and control of the residential property to a body to whom it has no statutory power to dispose, in this case a housing trust. Whatever the terms of the transfer, so the argument goes, it cannot confer any proprietary interest on the housing trust because, if it did, that would be an ultra vires disposition and therefore void. The transfer will, however, put the housing trust in unchallengeable factual control of the property, and therefore put it in a position to take the second step, which is for it to grant exclusive occupation of the property to a residential occupier. The housing trust is then able to argue that, whatever the terms of the agreement it makes with the residential occupier, it cannot amount to a tenancy because of the nemo dat rule.

The policy issue confronting the House of Lords was therefore whether a local authority and a housing trust, each of which had the power and the capacity to