The tortious claim for nuisance, and the rights of those in occupation of land have for many years, been exclusively limited in the preservation of common law sensibility.

On this occasion, a collective suit for both nuisance and negligence by local residents against that of corporate rights, produced an unexpected outcome.

After the demise of dockland trading in London, the areas once frequented by countless importers and exporters, fell foul of disuse and neglect.

After lengthy consideration, both immediate and future plans for the site were subject to the Secretary of State who, recognising the need for both housing and commercial exploitation, took advantage of sections 134(1) and 135(1) of the Local Government, Planning and Land Act 1980, in order to commission urban regeneration of the London docklands area under the formation of the London Docklands Development Corporation (LDDC).

In line with the need for such redevelopment, the 1980 Act allowed the Minister to override typical planning permission requirements, as laid down in the Town and Country Planning Act 1971.

This resulted in the construction of the 800ft tall Canary Wharf Tower by nominated contractors Olympia and York Canary Wharf Ltd, along with interlinking roads to the surrounding city over a four-year period.

This ambitious project resulted in two tortious claims by 500-700 local residents; the first of which, centred around the interruption and in some cases, total disruption of television broadcast signals after the completion of the tower, and excessive amounts of materials dust invading the homes of the claimants throughout the construction period.

The case itself drew mixed, and yet keen attention of the the courts, primarily because the history of nuisance and negligence were to some extents, intertwined, and thus dependant on the principles found within property law.

In the first matter, the rights of those wishing to build upon their land stem from the long-standing principle that in the exception of easements or restrictive covenants, every man has the freedom to build as he pleases, as was stressed by Hardwicke LC in Attorney-General v Doughty, when he said:

“I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .”

Attorney-General v Doughty

Furthermore, in a recent German case G v City of Hamburg, the Supreme Court had ruled unequivocally that where a resident had suffered diminished television broadcast signals following the construction of a nine-storey hospital, such effects were not subject to the powers of their Civil Code; and so, no claim for nuisance could stand.

This reflected the stance of the English courts; therefore, support for such a claim would not be found, despite the large numbers of complaints.

Turning to the issue of dust, the principles of property law were again invoked, inasmuch as established academic precedent argued that:

“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”

However, this definite founding for claim had seen its critics, when in Foster v Warblington Urban District Council, the Court of Appeal had ruled that a person in exclusive possession of land could sue, despite no evidence of title.

This principle was further promoted in Khorasandjian v Bush; in which, a young girl had been subjected to continuous phone calls from a spurned former partner while living with her parents; and where, Dillon LJ had also remarked that it was:

“[R]idiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.”

Khorasandijian v Bush

Here, the court followed Canadian case Motherwell v Motherwell, where it was held by the Appellate Court, that not only was the legal owner entitled to remedy for nuisance, but the wife too, despite her having nothing more than occupational rights.

Unfortunately, the problems facing the claimants was that a large majority of them were spouses, children and in some instances, extended family.

This placed the courts in a difficult position when recognising the need to consider expanding upon private claimant rights in nuisance cases beyond that of land owners, especially with similar changes to spousal rights in both the Matrimonial Homes Act 1983 and the Family Law Act 1996.

When first heard, the court held that television signal interference was a claimable right under nuisance, and that exclusive possession of land was the qualifying criteria for claim in both instances.

However, the Court of Appeal reversed the decision; and so, the original defendants appealed to the House of Lords, while the claimants cross-appealed.

With forbearance of the seemingly inextricable limitations of both tort and property laws, it was (after lengthy discussion) unanimously held that the despite the changes in modern society and the family units, the strict rule of exclusive possession remained steadfast; not on grounds of unreasonableness, but in the prevention of arbitrary awards for complainants having little to no proprietary rights.

Hence the House reversed the Court of Appeal’s findings, while reminding the parties that:

“Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance.”


The Artist’s Wife 1933 Henry Lamb 1883-1960 Presented by the Trustees of the Chantrey Bequest 1934

Persons in actual occupation’, ‘overriding interests’, and the repossession of two matrimonial homes (see also Williams & Glyn’s Bank Ltd v Brown in this hearing) from defaulting husbands, gave the wives involved, their first real chance of preventing injustice through the exercise of equitable rights.

The aim of this appeal hearing was to establish whether actual occupation of land (or property therein), was considerable enough to constitute an overriding interest, both under repossession of the land, or through the proceeds of sale.

The archaic history behind property law is sadly one that until the decade prior to this appeal, denied women the fundamental right to declare equitable interest in the marital home they both shared, and increasingly invested in.

On this occasion, there were two similar matters involving the indiscretions of the men, who, while acting under individually assigned companies, took it upon themselves to remortgage the family home in order to expand their business interests.

While this may not seem particularly unusual, what removed them from average expectation was that in both instances, the appellants held sole legal title to the properties, and withheld knowledge from their spouses that the additional charges had been agreed with the lenders.

In Boland, the husband had chosen to borrow in order to secure storage space for his construction partnership, while in Brown, the objective was that of additional investment into a developing film production company.

Both of these men used the same bank, and on both occasions, the bank themselves failed to make adequate enquiries as to who else shared the homes, and to what extent their interests might affect the bank’s ability to repossess under default.

When both parties became unable to meet the increased repayments, separate proceedings were started against them for recovery of the capital; at which point, the judges awarded in favour of the bank, before the appellants sought relief on grounds that the wives were unwitting casualties of the contractual arrangements between the bank and businessmen; and that on consideration of their collective financial contributions to the properties, the bank had no footing upon which to seek repossession without court order support.

With laboured consideration of the changes in statute, and the arguments presented against the rights of the women, it was unanimously found that despite previously (and outmoded) held views of the roles women play within property ownership, the world was now a very different place, and that without the enduring commitment of hardworking wives and mothers, it was often impossible for many  homes to remain free of reclaim.

Furthermore, the bank in the former case had every opportunity to sell the storage space for a considerable sum, and yet opted to sell for a figure grossly below market value, before trying in vain to convert the mortgagees home into recoverable assets, while overlooking its own professional obligation to observe lending policy and make sufficiently exhaustive enquiries at the outset.

Hence the court upheld the appeal, while reminding the parties that:

“Once it is found that a wife is in actual occupation, then it is clear that in the case of registered land, a purchaser or lender would be well advised to make inquiry of the wife.”


Vehicular access through the granting of a servitude (or easement), is something that when not considered at the date of grant, can also fail to appreciate the need to park within the allotted space over the course of time.

In this matter, the presence of land-locking and the limitations of geography, presented the respondents with no real means to enjoy their occupation as freeholders, when the parking of their car(s) was to be restricted to a public road, literally hundreds of metres away from the family home.

Situated in the village of Sandsound in the Shetland Islands, the cause of action rested upon the estranged living arrangements between three parties.

The respondents were owners of a property first purchased from one of the appellants in 1973; and which, was built on a coastal plot allowing access via a stone stepped path across the vendor’s land, or equally by boat.

Due to the formation of the land, it was impossible to park cars on the land owned by the respondents, while the appellants were the vendor (third appellant) and his son and wife (first and second appellants), who owned a neighbouring property situated in the same of land as the respondents.

At the time of conveyance, the deed included a clause granting “a right of access from the branch public road through Sandsound”.

This public route terminated short of a gate set at the top of the steps; and during the preceding ten to fifteen years, the respondents used the land around the gate for parking, unloading and reloading and to provide subcontractors with parking space while undertaking work on their house.

This regular use of land was never objected to by the vendor; and so, continued without interruption, until such time that the second appellant and the respondent constructed a new section of road that allowed the respondents dual parking and turning space.

Having both enjoyed the space provided, it was later decided by the second appellant that he would extend his garden and use the parking area to accomplish it, which resulted in the respondents being forced to park on the vendor’s land some distance away.

When put before the courts, it was argued that the terms of the servitude implied that a right to park formed part of the covenant, and so denying them such rights was a breach of the obligation carried within the terms of the disposition.

After considering volumes of testimony and associated evidence, the court employed the services of the local sheriff who, after a laboured inspection, decided by interlocutory judgment that the respondents were entitled to exercise their right to park, and that any interference by the three appellants would result in legal action by the court.

Upon appeal, the Court found disagreement with the mechanics of the injunctive measure, and amended the declaration to provide a legal right to park within the area determined by the servitude, so as to allow freedom to enjoy the rights contained within it.

When presented before the House of Lords, the principles of easements and rights to park were carefully balanced when assessing both the needs of the dominant tenement and the servient tenement.

While use of the land permits freedom to pursue access, it must also continue to the serve the needs of the servient tenement, when equally enjoying use of the remaining land.

This formed the premise of debate; and so, it was decided that implication can be relied upon when embracing the entirety of the servitude, insofar as enjoyment of the grant must be provided for in full in order to defeat anything that runs counter to its effect.

This translated that the right to park in the area previously used, remained free of obstruction and the appeal was uniformly dismissed, while the House reminded the parties that:

“Every servitude prevents any use of the servient land, whether ordinary or otherwise, that would interfere with the reasonable exercise of the servitude.”


Due to similarity of circumstance and the nature of the positions argued, this appeal hearing involved two separate, but inextricably linked, claims for tenancy under the pretence of sham agreements.

While both sharing the same fundamental contracts, there were deviations both within and without the documents, that deserved enquiry, if at least to clarify the terms of occupancy. 

Markou v Da Silvaesa

Having entered into an agreement displaying the hallmarks of a licenced residency, it was argued that after being requested to leave the premises following a change in property ownership, the two parties in occupancy were legally entitled to remain so under the assumption of a tenancy.

This was largely reliant upon the poorly worded contract, insomuch as clauses 1 and 2 were at no point enforced, and where the latter clause defied logic and reason when providing for a practical living arrangement.

Clause 1 required that each day, the appellants were expected to vacate the premises between 10.30am and noon for the duration of the contract, while clause 2 reserved a right for the landlord to remove and/or substitute items of furniture as deemed necessary.

What became of concern, was that the contract also required that the claimants not only vacated the property, but took their personal possessions too; a stipulation that by all accounts, was impossible to execute.

Likewise, the right to remove furniture rendered the appellants powerless to prevent beds or other essential items, from being taken away should the respondent see fit to do so.

Upon the respondent’s application for possession under Order 113 of the Rules of the Supreme Court (RSC), the appellants challenged its validity, on grounds that the agreement signed was nothing less than a sham, and that when applying the principles of Street v Mountford there could be no right to remove them.

In the first hearing, the judge ruled that despite vagaries in the terms of the contract, there was insufficient evidence to suggest sham intentions, particularly when the majority of the terms were clear and concise as to the engaging parties occupancy as licensees; and when later asked for the matter to be dealt with in the County Courts for the purposes of trial rather than summary judgment, the option was also dismissed.

When presented to the Court of Appeal, any contention that the agreement constituted a sham was, despite clearer presentation of the facts, further dismissed on grounds that echoed the previous judge.

However, the complications arising from the oddly drafted clauses raised significant issue around the right to allow possession when so much certainty lingered as to the exactness of the relationship shared between landlord and licensees.

This concern sustained the appeal in favour of new proceedings under trial, before any conclusive findings could be reached.

Crancour Ltd v Merola

Operating under identical contracts, the appellants relied upon oral agreements between themselves and the resident housekeeper, when challenging the presumption of licensee over what they believed to be exclusive possession leading to tenancy.

Prior to the change in ownership, the appellants had engaged in conversation with the domestic help, whereupon the offer to clean the room in accordance with the contract was turned down in favour of privacy while in occupancy.

Alternately, the appellants left their bed linen and waste outside the door in order to benefit from the services provided by the landlord.

It was for this reason, that the claim for tenancy was argued, along with the issues raised in the first case.

As was agreed above, the lack of certainty for clauses 1 and 2, coupled with a need for witness testimony with regard to the orally agreed terms, meant that just as before, the issue of possession orders could not be sustained without renewed appreciation of the full facts.

And so, the appeal was upheld in conjunction with the directions cited, while the court reminded the parties that:

“[P]ossession of rooms for occupation as ordinary residential accommodation must, from its nature, be intended by both parties to be exclusive except where, as stated, the landlord requires unrestricted access for the provision of services or attendance.”


The definition of an easement is one that runs with and benefits the land, when recognised under common law; and so, in this instance, the proclamation of easement by prescription, belied what may be equally construed as adverse possession, while defying the traditional purpose of rights of way over adjoining land.

When an estate comprising fields and a private orchard was sold to a new owner, a neighbouring property owner found themselves subject to complaint and mandatory injunction, when their use of a strip of the newly acquired land amounted to little more than exclusive possession under the pretence of an easement

The defendant in this matter occupied and operated, a wheelwright business that had enjoyed the benefit of storing carriages, and now, commercial and agricultural vehicles awaiting repair on the strip in question.

While the manner in which these items were left allowed for entrance and exit to the owner’s house, there had on occasion, been disruption to the use of the strip beyond that which was held as reasonable.

Having then taken the defendant to court in order for the vehicles to be removed, the argument was put before the judge that prior to the recent purchase, an agreement had been made between the former owners and the defendant, thus allowing him and his father to store carriages and spare parts until such time that they could be serviced and returned to their customers.

This arrangement dated back half a century, and so when the home had been leased to tenants, no complaints had been made regards the defendants use of the land.

This amounted to a claim that the existence of an easement was valid under the Prescription Act 1832.

While easements can be enforced by prescription, the court was indifferent to the manner in which the defendants had used the land, inasmuch as far from using the strip as a means of access, they had simply left a number of objects in situ, with the luxury of knowing they may, or may not, be used and removed.

Furthermore, the defendant’s land was adjacent to the strip and so did not touch the property in question, therefore it fell outside the scope of easement rights, and thus failed to determine the arrangement as one comprising a right of way.

With the defendant relying upon the far-reaching Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Ltd to distinguish the claim, it was agreed that while no immediate objections had been raised by the previous owners, occupying tenants or new owners, it was not possible to consider the manner in which the land was used required possession; therefore, no claim for the former could be upheld, while the court reminded the parties that:

“[A]n easement can be lawfully acquired only if it is capable of judicial definition, restriction and control.”


Acrylic on Panel-24″ x 24″

Derogation from grant by way of illegal easement, and the right to peaceful enjoyment of property, make for a brief and yet divisive matter, when two leaseholders seek to enforce their own entitlements in the courts.

Having recently acquired tenancy in a shared building, the respondent took steps to reduce her portion of the property, in exchange for subletting to an additional tenant.

In order for this to work, it was proposed by the leaseholder to the landlord, that an iron external staircase would allow for access when the using the room created.

The landlord raised no objections, and so the work went ahead as planned.

Having rented the ground floor of the same building, the claimant’s privacy was impinged upon, as the staircase was erected between two of her bedroom windows.

This translated that the sub-tenant using the stairs was now afforded a clear view into those rooms.

Under the terms of the lease, the landlord was under obligation not to derogate from the arrangement, which included an agreement that no tenant would suffer, or cause to suffer, another tenant any nuisance or reduction of the view to the outside gardens while in occupancy.

As was clear from the location and purpose of the staircase, the claimant was now placed into a position where she either installed blinds or curtains to restrict the view, or argued that the imposition and loss of light resulting from them had constituted a breach of agreement on the part of the landlord.

Upon litigation, the court heard about, and fully appreciated, the invasive nature of the staircase, but when relying upon similar case precedent, there was insufficient evidence to suggest that the invasion of privacy amounted to total loss of the views provided for by the outside gardens, or any enjoyment of natural light.

It was held instead, that the change in circumstances proved mere inconvenience at particular times of the day and little more.

It was also held that while the terms of the lease prevented any use of the property beyond that of private tenants, the staircase had been built upon adjoining land, and not that used and paid for by the tenants, therefore it fell beyond the scope of claim.

In closing, the judge awarded in favour of the respondents, before noting that the landlord had only consented with the erection of the staircase on the respondent’s assurances that the claimant had raised no objections; therefore, there had been misrepresentation as to any disagreement prior to their installation, and so no order for her costs were made, while the court reminded the parties that:

“[I]f the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.”


Resting upon the equitable maxim ‘he who comes to equity must come with clean hands’, the clandestine collusion between two brothers falls foul, when the agreement dissolves in favour of the abetting sibling. 

After lapsing into bankruptcy, a business owner tries to circumvent the dissolution process in an attempt to save his home from repossession.

In order to achieve this, he asks that his brother purchase the property from the bankruptcy trustees, before holding the house on trust until such time that the now appellant is able to regain legal title.

While agreeing to this proposition, the respondent approaches the trustee, before securing the property through cash downpayment and mortgage redemption, prior to allowing the appellant to regain occupancy.

A second agreement followed that enabled the appellant to make contributions to the mortgage repayments, as well as investing money into the maintenance of the home; again under the pretence that the respondent held the property on trust and nothing more.

Fifteen years after the repurchase, the respondent sold the property for significant profit, placing roughly half the proceeds in trust with his sister, who then refused to pay the money back, on grounds that the respondent had breached his agreement and duty as a trustee to his brother.

At this point, the appellant issued proceedings for its recovery, before the sister part-paid the appellant and placed the remainder in the hands of the court.

This resulted in the appellant issuing proceedings for the balance held, while the respondent counter claimed to defend his position . 

Relying upon the argument of numerous trusts (express, constructive, common intention and resulting) with which to recover the sale proceeds, it was argued that by selling the home, the respondent had unlawfully profited from his position as a trustee; and that as such, the money was now owed to the appellant and enforceable through equity.

This claim was struck out in the first instance, on grounds that equity will not allow a trust created through illegality to stand, and therefore no remedy in law could exist when the appellant had requested that the respondent purchase the home in order to avoid duties brought about under section 333(2) of the Insolvency Act 1986.

When heard in the Court of Appeal, the facts were revisited with little to no effect for the appellant, despite continued multiple arguments from his representative.

While the appellant accepted that the original agreement served two aims (retention of the home and avoidance of creditor payments), the Court would not ignore the reality that the same person seeking equitable remedy, was behind the illegal concept and undertaking of, a property purchase designed to undermine and breach the legal duty owed when winding down a business.

It was then, for that very simple and yet unmistakeable reason, that the judge upheld the previous findings and flatly dismissed the appeal, while reminding the parties that:

“[E]quitable proprietary rights are to be treated in essentially the same way as legal proprietary rights and will be enforced provided that the claimant does not plead or lead evidence of the illegality.”


In order to enjoy the protective nature of exclusive possession from the powers of the Rent Act 1977, it must first be established what type of contractual arrangement has been agreed.

In this instance, the Court of Appeal decided upon two cases where landlords seeking possession were subject to examination.

Aslan v Murphy (No 1 and No 2)

Having entered into a living arrangement with the landlord of a hotel, the appellant was granted use of a basement room, while deprived of many freedoms in lieu of strict usage controls.

The extent of those restrictions included a ninety-minute window, where the appellant was denied access to the room, as well as having to surrender the room keys to the respondent when leaving the room.

It was thus argued that the contract was between a licensor and licensee, as opposed to that of landlord and tenant.

This alteration of rights prevented the appellant from retention of occupancy under the Rent Act 1977; and so, having sought repossession of the room, the matter went to court, whereupon the necessary order was granted prior to an appeal, where the Court found that tenancy rights did exist.

Around the same time, the local authority served a closing order against the respondent upon grounds that the room was unfit for human occupancy and therefore unable to stand as chargeable for rents, as per section 266 of the Housing Act 1985.

This led to a second possession order in favour of the respondent; however, in order to secure alternative accommodation through the local authority, the appellant requested that the courts declared the actual nature of the contract as no notice to quit had been served, and that the appellant was now protected through exclusive possession until such time as notice was given.

Relying upon section 276 of the 1985 Act, the respondent countered that the power of the closing order negated any right to exclusive possession, while under section 277 of the same Act, it was further contended that any continued occupancy by the appellant constituted a criminal offence, subject to occupancy penalties. 

Put before the Court of Appeal, it was held that until clarification of the contract could be ascertained, there could be no effect to the possession order, despite the powers claimed under the Housing Act 1985; and that until such time, neither party could pursue their own ends.

Duke v Wynne

In this case, the relationship was that between a homeowner and a family in need of accommodation, while the contract entered into was one where the respondent reserved the right to terminate the arrangement on or around a two-year period.

Due to the generous size of the property, there was also express denial of exclusive possession within the terms of the contract, due to a provision for additional parties to share the home at the privilege of the respondent.

During the two years in which they remained in occupancy, the appellants used the whole of the house; and at no point, did any new occupiers enter the property, despite such prohibition.

At the point in which the respondent sought possession following her decision to emigrate, it was contested by the appellants that with no alternate means of accommodation, and having had free reign of the house, they were now entitled to remain in occupancy with exclusive possession under the terms of the Rent Act 1977.

Having considered the wording of the contract and the manner in which the appellants had been allowed to reside, it was held by the Court that without any evidence of shared occupancy, the appellants had by virtue of their liberties, enjoyed exclusive possession of the home for the duration of the time passed; and that vacant possession was not legally enforceable, failing any notice to quit, while reminding the parties that:

“[T]here are materials from which it is possible to infer that the occupier is a lodger rather than a tenant. But the inference arises not from the provisions as to keys, but from the reason why those provisions formed part of the bargain.”


As discussed in Aslan v Murphy, the protection of exclusive possession under the Rent Act 1977 is under scrutiny when another two cases are subject to judicial wisdom.

In the first instance, the collective arguments of four individuals rally against the wishes of a landlord looking to remove them in favour of longer-term arrangements; while in the second case, the needs of two cohabiting parties are contested before a landlord seeking their departures for similar reasons.

AG Securities v Vaughan

Situated near the very popular West End of London, the building in question was a four-bedroom flat that had been apportioned to accommodate four individual residents at any one time.

The nature of the arrangements were unique to each party, so subsequently there were four separate contracts precluding the right to exclusive possession on grounds that each licence was for a six-month period, before commencing as a rolling one-month contract, prior to predetermined notices to quit from either landlord or licensee.

Over a period of around three years, the appellants had by grant of the respondent, enjoyed intrusion free use of the flat, and were eventually left to determine (through interviews and group discussion) who would replace those vacating their rooms during the passage of time.

Each party also paid differing amounts of rent, and had acquiesced to the terms of their agreements when becoming part of the group in occupation.

When the time came for the landlord to reassess how he wished to lease the flat, it was decided that long-term sub-leases were preferred; at which point, notice to quit was served upon the four remaining occupiers.

This prompted the local authority to establish through the rent officer, whether the appellants were in fact considered tenants under section 68 of the Rent Act 1977, and not licensees (as suggested by the respondent and indicated in the terms of their individual contracts), and thus how best to determine a fair market rent.

The landlord contested the application, and sought to apply an injunction against the local authority, while seeking payment of rent arrears by the appellants, while on this occasion, the judge found in favour of the respondent, and declared the appellants licensees.

Upon appeal, three of the appellants were successful in reversing the previous decision by the court, thereby granting the appellants powers of joint tenancy, whereupon the respondent appealed. 

With a verdict of two to one for the now appellants, the principles of exclusive possession and joint tenancy were examined, within which the rights determined in Street v Mountford require exclusive possession in lieu of payable rents for a determinable period.

On this occasion, although the contract contradicted the nature of the living arrangements, the four appellants had enjoyed uninterrupted possession of the flat, and were subject to finite durations of contract prior to the respondent’s remuneration for  privilege of occupancy.

With regard to joint tenancy and the principles of unity of possession, interest, title and time, it was held that at one point the four appellants were equal in their period of residency, and while each resident held separate contracts, their duration was of the same length; therefore, unity of term applied, despite disparate cessation of each agreement.

While title must be held under the same Act, there was by implication, a single agreement that bound each resident to the same conditions; and although the contractual periods overlapped, each was determinable in duration, and therefore valid in terms of ascertainment.

This somewhat overreaching of the principles of tenancy, amounted to judgment in favour of the appellants and award of costs.

Appealed again in the House of Lords, it was quickly concluded that to allow a joint tenancy to exist would be an affront to the four unities, when no one person was granted exclusive interest in the property; but instead, were merely sharing a right to occupancy under licence; and that when compelled to enforce their legal rights, the technicalities of the contracts denied them tenancy powers, regardless of how hard they tried to collaborate. 

Antoniades v Villiers

In this matter, an experienced property manager took the steps to observe the legal principles held in Somma v Hazelhurst; where it was held that two parties sharing the same room while under separate contracts can enjoy the rights of exclusive possession, and thus those of the Rent Act 1977, despite signing licence agreements.

It was after openly discussing the respondent’s preference to licence agreements, that the appellants willingly co-signed separate, yet identical agreements on the same day, before commencing their occupancy as contracted.

Part of the agreement stipulated that at the luxury of the respondent, there was a possibility that additional residents may be added to the house; and that until such time, the appellants were to cohabit as husband and wife (even though they were just boyfriend and girlfriend).

Little over a year later, the respondent issued them with a month’s notice to vacate the property, following disputes over non-payment of rent.

It was then that the appellants asserted themselves as tenants and not licensees; after which, the rent officer upheld their claim and registered a lower rent than had been previously agreed.

Having taken them to court, it was found by the judge that while the terms of the agreement were reflective of the outcome of Somma, the recent decision taken by the House of Lords in Street had in essence, reversed that position back in favour of the appellants, when Templeman LJ said:

“Although the Rent Acts must not be allowed to alter or influence the construction of an agreement, the court should, in my opinion, be astute to detect and frustrate sham devices and artificial transactions whose only object is to disguise the grant of a tenancy and to evade the Rent Acts.”

Street v Mountford

This translated that those once considered licensees under similar circumstances to the one created by the respondent’s draft, were now deemed tenants under protection of the Rent Act 1977; and so, by following verbatim the minds of the judges, the court found in favour of the appellants, and dismissed the possession order.

In the Court of Appeal, the two judges agreed that great lengths had been taken by the respondent to act inside the legalities of occupancy rights, and that the transparent nature of the relationship both before and after the signing of the agreements, dictated how no efforts were made to conceal the limitation of rights ascribed the two parties.

For this reason, the appeal was upheld and possession procedures left to recommence.

Further appealed and evaluated in the House of Lords, the meaning of the agreements (while appearing legitimate) were now held to be nothing short of manipulative and misleading.

It was also agreed that by the two appellants signing mirroring contracts and paying the same amounts each calendar month, they had by extension, been afforded the same rights and freedoms provided for tenants under the very Act the respondent had looked to avoid.

It was also agreed that aside from clause 16, which allowed the respondent to reside himself, or introduce another occupier, there was nothing to suggest that a joint tenancy based upon interdependence did not exist; hence, the House allowed the appeal while reminding the parties that:

“Since parties to an agreement cannot contract out of the Rent Acts, a document which expresses the intention, genuine or bogus, of both parties or of one party to create a licence will nevertheless create a tenancy if the rights and obligations enjoyed and imposed satisfy the legal requirements of a tenancy.”


When a long-term relationship founded upon fierce independence to the exclusion of marriage reaches breaking point, the effects of separation are altered through the sale of the family home.

Where domestic legislation lends assistance to the courts under the Married Women’s Property Act 1882 and Matrimonial Causes Act 1973, there was, at the point of this hearing, no legal framework within which the division of proprietary rights could be easily established where no declaration of trust had been officiated.

Having met as a young couple before sharing a home together, the title of the first property was held for the respondent, after a sole purchase made with a considerable cash investment and the remainder by way of mortgage.

During the next decade, the two parties created a family and began raising four children out of wedlock, while maintaining to all effects, separate financial accounts.

Through the course of their time in residence, there were a number of improvements made to the property, and while the appellant laid claim to the majority of the work, it was proven undeterminable, and thus assumed as equally contributed to. 

When the time came to sell the home, there had been a significant profit made in favour of the respondent, which was immediately reinvested in their second home; whereupon the couple entered into a joint purchase under secured borrowing for the remaining balance, before registering the new house under equal ownership.

In the absence of any declaration of trust, the couple opted to include a survivorship declaration that provided for absolute ownership under the death of either party.

During this period, the financial contributions were again favourable by some margin, to the respondent, although there was increased investment on the part of the appellant.

Less than ten years later, the couple decided to separate, and it was agreed that the appellant would leave the home and seek residence elsewhere, for the sake of the children and domestic stability.

As part of this agreement, the two parties underwent civil proceedings, where it was settled that in consideration for his leaving, the respondent would make specified monthly payments to help subsidise the appellant’s living costs under the terms of the Trusts of Land and Appointment of Trustees Act 1996, until such time as the sale of the house was complete.

It was after the failed renewal of the monthly payments, that the appellant sought claim for equal division of the sale proceeds, upon grounds that they had entered into the purchase of the second home as joint owners, and so under the principle of common intention and the legality of the conveyance, he was entitled to half the value of the sale, despite any claim to the contrary.

In the original hearing, the judge assessed the arguments through the essence of a working partnership, and chose to place greater weight upon the perceived intentions displayed when raising a family and managing their financial obligations; thereby ignoring the division of equitable wealth and awarding a fifty-fifty distribution of the sale funds to both parties.

Upon appeal, the Court took a wholly different view, and took pains to calculate the proportion of investment shown by the couple during their time in the home; ultimately arriving at a sixty-five to thirty-five percent division, along with the cessation of compensatory payments, in lieu of his premature departure and relocation of residence.

When bought before the House of Lords, the discussion revolved around the complexities of unmarried couples, and the often misleading nature of common intention when needing further detailed evidence as to the minds of those in contention.

It was also agreed that while the appellant had enjoyed the security of monthly payments, his removal from the home was agreed under the terms of the Family Law Act 1996; and so, any claim brought against his non-payment was fatal to observance of the applied statute.

With regard to the readjusted percentages, the House held that at best, the figure might be recalculated within a minor percentage; however, the strength of the respondent’s evidence as to her financial investment, remained as convincing as it was in the appeal.

And so, aside from any idea that a resulting trust could have been argued for in respect of beneficial interest, the outcome required no further interference, while

“[I]n a case of sole legal ownership the onus is on the party who wishes to show that he has any beneficial interest at all, and if so what that interest is. In a case of joint legal ownership it is on the party who wishes to show that the beneficial interests are divided other than equally.”

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