Notes and Questions 7.2

Possession 277

(1)Does it follow from what Lord Templeman says that it is possible (a) to be granted the right to possession of land, and yet still have only a licence (i.e. a nonproprietary right), or (b) for possession to be a free-standing proprietary status, not just an ingredient of an acknowledged proprietary interest such as ownership, lease etc.? See further section 17.3.1.6 below on this point.

(2)Lord Templeman said that, if an occupier is granted exclusive occupation, the prima facie intention to create a tenancy will nevertheless be negatived

‘where the owner, a requisitioning authority, had no power to grant a tenancy’. Consider why this should be the case (see Bruton v. London & Quadrant Housing Association [1999] 3 WLR 150, HL, discussed in Notes and Questions 17.5 below)

3Read Gray v. Taylor [1998] 1 WLR 1093, CA, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

(1)The first example Sir John Vinelott gives (of a beneficiary properly being required to pay for occupation of land held on trust for him) concerns a private trust. But the trust in this case is not a private trust but a public charitable trust. In a charitable trust, unlike a private trust, the trustees do not hold the trust property on trust for individual beneficiaries. Instead, they hold it on trust for the abstract charitable purpose for which the trust was created. So, for example, Oxfam holds its assets on trust for the relief of poverty, not on trust for the people on whom it spends its money. Those people who do happen to benefit from the charitable purpose being carried out are therefore not ‘beneficiaries’ of the trust in the technical sense: they have no locus standi to enforce the trust (this can be done only by the Attorney-General) and they have no interest in the trust property. Mrs Taylor’s occupation of the flat could not therefore have been attributable to any trustee–beneficiary relationship.

(2)Compare the outcome and reasoning in this case with that in Family Housing Association v. Jones [1990] 1 WLR 779, CA, where occupants of housing provided by a housing trust pursuant to its purpose of providing short-term accommodation for the homeless were held to be tenants and not licensees

(they had exclusive occupation: the opposite conclusion was reached by the House of Lords in Westminster City Council v. Clarke [1992] 2 AC 288, where the terms imposed on residents of a homeless persons’ hostel resulted in them not having exclusive occupation of any one room). Slade LJ expressed misgivings about the effect of the court’s decision:

[W]hatever their wishes or intentions, it may at least be difficult for bodies charged with responsibilities for the housing of the homeless to enter into any arrangement pursuant to section 65(2) of the Housing Act 1985 under which the person housed is to enjoy exclusive occupation of premises, however temporarily, without conferring on that person security of tenure by virtue of the Act . . . The result must be substantially to reduce the choice of methods available to bodies such as the housing association for dealing with their always limited supplies