WEEK 3 Reforming assured shorthand tenancy

What legislation was in place prior to the Housing Act 1988? 

The Housing Act 1988 transformed the system of residential tenancies in England and Wales. Before this Act, most tenancies were governed by the Rent Acts, which heavily protected tenants but severely limited landlords’ rights.

What was the purpose of the Rent Acts?

Purpose: The Rent Acts began with the Increase of Rent and Mortgage Interest (War Restrictions) Act 1915, aiming to prevent the exploitation of tenants during housing shortages.

Effect on Landlords:
As Gray & Gray note, the Rent Acts gave tenants long-term security of tenure and “fair rent” protection.This left landlords with little more than a “bare reversion”, meaning they owned the property in name only, as they could rarely regain possession.

Landlords’ Response:
To avoid these strict laws, landlords tried to structure agreements as licences (e.g., Street v Mountford, Antoniades v Villiers) rather than leases, because licences were not covered by the Rent Acts.

Transition from the Rent Acts to the Housing Act 1988

The Rent Acts were phased out, and from 15 January 1989, no new Rent Act tenancies could be created (s.34(1) Housing Act 1988).

The  Housing Act 1988 introduced a new system of tenancies:

• Assured tenancies

• Assured shorthold tenancies (ASTs)

Definition of an Assured Tenancy (under section 1, subsection 1 of the Housing Act 1988)

A tenancy is an assured tenancy if and so long as:

1. The tenant (or each joint tenant) is an individual (not a company);

2. The tenant (or at least one joint tenant) occupies the property as their only or principal home;

3. The tenancy is not excluded under s.1(2) or s.1(6) (these cover specific exceptions).

The policy aim behind assured tenancies

• The 1988 Act sought to rebalance rights between landlords and tenants.

• It replaced the rigid, tenant-favouring Rent Act system with greater flexibility, allowing landlords to regain possession more easily while still providing tenants with basic protection.

Case law for the courts focus on substance over form

Street v Mountford (1985) = Confirmed that if the occupier has exclusive possession, the arrangement is a tenancy, not a licence—despite what the agreement calls it.

Antoniades v Villiers (1990) = Reinforced that labels in agreements cannot disguise the true nature of a tenancy.

Assured tenancy vs assured shorthand tenancy

Section 19A(1) Housing Act 1988 provides that an assured tenancy is automatically treated as an assured shorthold tenancy (AST) if:

• It is entered into on or after the date that section 96 of the Housing Act 1996 came into force (28 February 1997), unless it was made under a contract entered into before that date; or

• It comes into being under section 5 (i.e. where a new tenancy arises at the end of a previous one) following an assured tenancy created after that date.

However, this automatic conversion does not apply if the tenancy falls within one of the exceptions in Schedule 2A to the Act. Schedule 2A states that the following tenancies are excluded from being assured shorthand tenancies: 

• Tenancies where the landlord is a private registered provider of social housing, and the tenancy is not of the AST type;

• Business or agricultural tenancies;

• High-rent or low-rent exclusions, among others.

Criticisms on the Housing Act 1988

In “The Housing Bill – A Radical But Retrograde Regime?” (1988) Nic Madge argued that the Housing Act 1988 introduced a tenancy system that significantly weakened tenant protection compared with the former Rent Act regime.

He highlighted several key concerns:

• Reduced security of tenure:
  The so-called “assured” tenancies actually provided less protection than previous Rent Act tenancies, which offered long-term security.

• Loss of rent regulation:
  The concept of a “fair rent”—a rent capped and controlled to protect tenants from market pressures—was abolished for new tenancies.

• End of landlord approval:
  Under the Rent Acts, landlords often had to be approved by the Secretary of State. This safeguard was removed, giving landlords greater freedom and less oversight.

• Market-driven rents:
  Rents were to be determined by what “a willing landlord in the open market” might charge, rather than by social or fairness considerations.

Housing Act 1988 market-based regime provisions (rent) and implications

The Housing Act 1988 implemented this new market-based regime through several provisions:

• Section 13(4)(a):
  Allows landlords to propose rent increases during a periodic assured tenancy by serving notice on the tenant.

• Section 14(1):
  Gives tenants the right to refer the proposed rent to a Rent Assessment Committee (now part of the First-tier Tribunal).

• Standard for review:
  The Committee can only decide what rent “might reasonably be expected to be obtained in the open market by a willing landlord” — not what is fair or affordable.

• Section 22:
  Provides a limited opportunity for review of the initial rent at the start of an assured tenancy — but only once. After this, market rents apply without further formal control.

The policy intention behind these provisions was to deregulate the private rental market and encourage landlords to rent out property by giving them easier possession procedures and freedom to charge market-level rents. However, for tenants, this meant weaker security of tenure (especially compared with Rent Act tenants), exposure to market rent levels and reduced protection from eviction or excessive rent increases.

Housing Act 1988 landlord’s right to recover possession

Section 21(1) Housing Act 1988 provides that when a fixed-term assured shorthold tenancy (AST) comes to an end, the court must grant possession of the property to the landlord if:

1. The tenancy has ended, and no further assured tenancy is currently in existence (except for any statutory periodic tenancy that may have arisen); and

2. The landlord (or one of the joint landlords) has given the tenant at least two months’ written notice stating that possession is required.

This is commonly referred to as a “Section 21 notice” or a “no-fault eviction notice”.

Effect of section 21

Section 21 introduced a major shift in landlord–tenant relations compared with the Rent Act regime. It allowed landlords to recover possession automatically, without needing to prove any fault or breach by the tenant.

Key points:

• Once a valid two-month notice has expired, the court must grant possession (i.e. has no discretion).

• The landlord does not have to give a reason for ending the tenancy.

• It applies after the end of the fixed term or during a periodic tenancy arising thereafter.

Section 21(5) states that a landlord cannot serve notice during the first six months of the tenancy, meaning that an assured shorthand tenancy has a minimum guaranteed period of 6 months before a landlord can begin possession proceedings. 

Section 21 of the Housing Act 1988 vs the historic Rent Acts

Section 21 definitively marked the end of the long-term, security-based system that existed under the Rent Acts.

Under the Rent Acts

• Tenants had strong security of tenure; landlords could only evict on limited statutory grounds (e.g. arrears, nuisance) 

• Eviction required proof of fault or a statutory reason 

• Rent was regulated and tenancies could be indefinite

Under section 21

• Landlords can recover possession after fixed term by simply serving two months notice - no grounds or justification required

• Eviction possible “without fault” - hence the term no-fault eviction 

• Tenancies are time-limited, and rent levels are market-driven

This change signalled a decisive shift towards market liberalisation and landlord flexibility, moving away from state-controlled rent and tenure systems.

Section 8 of the Housing Act 1988 possession for assured tenancies

Section 8 Housing Act 1988 sets out the procedure for landlords to recover possession of a dwelling let under an assured tenancy (as opposed to an assured shorthold tenancy).

The key rule is that a landlord cannot begin possession proceedings unless:

1. The landlord (or one joint landlord) has served a valid notice on the tenant under s.8, and

2. The proceedings are started within the time limits stated in that notice (as required by subsections (3)–(4B)).

A Section 8 notice must:

• Be in the prescribed statutory form;

• Inform the tenant that the landlord intends to begin possession proceedings; and

• Specify one or more grounds for possession drawn from Schedule 2 of the Housing Act 1988.

The grounds and the particulars must be included in the notice. They can later be amended or added to with the court’s permission.

Possession can only be sought on specific statutory grounds, which are listed in Schedule 2. These include:

• Mandatory grounds (e.g. serious rent arrears, Ground 8) — if proven, the court must grant possession.

• Discretionary grounds (e.g. some rent arrears, nuisance, breach of terms) — the court may grant possession if it thinks reasonable.

This contrasts sharply with Section 21, where no grounds are needed at all.

Under Section 7(1) of the Housing Act 1988 “The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2”

Section 8, therefore, provides the notice procedure that enables a landlord to rely on those Schedule 2 grounds when seeking possession.

Section 8 vs section 21 of the Housing Act 1988

Section 8 (assured tenancies) 

• Assured (non-short hold) 

• Must specify at least one statutory ground (schedule 2)

• Prescribed section 8 notice 

• Court may refuse possession of(except on mandatory grounds) 

• Higher burden on landlord, must prove grounds

• Stronger security of tenure for tenant protection

Section 21 (assured shorthand tenancies) 

• Assured shorthand tenancy 

• No grounds needed, “no-fault” eviction

• Prescribed section 21 notice 

• Court must grant possession if notice is valid 

• Lower burden on the landlord, only need valid notice and timing

• Much weaker tenant protection, landlord can recover possession easily

Policy and practical effect of section 8

• The Section 8 process is more protective of tenants, as landlords must justify eviction on recognised legal grounds.

• It reflects the original philosophy of the Housing Act 1988 — that assured tenants (non-shorthold) should enjoy meaningful security.

• However, in practice, most modern tenancies are ASTs (due to s.19A), meaning landlords usually rely on Section 21 instead.

As a result, Section 8 procedures are less frequently used, except in cases where:

• The tenancy is assured (not shorthold) (e.g. some housing association tenancies); or

• The landlord needs to evict a tenant before the fixed term ends for breach or rent arrears.

Schedule 2 of the Housing Act 1988 - what grounds can a landlord seek possession?

Schedule 2 Housing Act 1988 forms a key part of the legal framework for assured (non-shorthold) tenancies.It lists the grounds on which a landlord can seek possession of a dwelling-house through the courts.

There are two categories of grounds:

1. Mandatory grounds – the court must grant possession if the ground is proven.

2. Discretionary grounds – the court may grant possession if it considers it reasonable to do so.

These grounds must be specified in a valid Section 8 notice before possession proceedings can begin.

Mandatory Grounds:

There are ten mandatory grounds under Schedule 2. If one of these is established, the court has no discretion — possession must be ordered.

Examples include:

• Ground 1 – Landlord’s former or future residence
  The landlord previously lived in the property as their only or principal home, and now seeks possession to live there again.

• Ground 2 – Mortgage possession
  The property is subject to a mortgage, and the lender (mortgagee) seeks possession for sale or enforcement.

• Ground 3 – Holiday letting
  The dwelling was previously let as a holiday home, and the landlord now wishes to resume using it as such.

(Other mandatory grounds include serious rent arrears (Ground 8) and certain employment-linked tenancies.)

Discretionary Grounds:

There are eleven discretionary grounds.
Even if the landlord proves the ground, the court retains discretion to refuse possession if it would be unreasonable to grant it.

Examples include:

• Ground 9 – Suitable alternative accommodation
  Other reasonable and suitable accommodation will be available for the tenant when the possession order takes effect.

• Ground 10 – Rent arrears at notice and proceedings
  Some rent was in arrears when the notice was served and remains unpaid when court proceedings begin.

• Ground 11 – Persistent delay in paying rent
  The tenant has repeatedly paid rent late, even if it is not currently in arrears.

• Ground 12 – Breach of tenancy obligations
  The tenant has failed to comply with one or more terms of the tenancy agreement.

• Ground 13 – Deterioration of the dwelling
  The property has deteriorated due to the tenant’s neglect or waste, or that of someone living with them.

(Other discretionary grounds include nuisance, damage, or antisocial behaviour by tenants or visitors.)

Relationship between section 8 and schedule 2

Section 8 = provides the notice procedure a landlord must follow before applying for possession

Schedule 2 = sets out the substantive legal grounds the landlord must rely on

Together, these form the statutory possession of assured tenancies.

Routes to eviction (section 8 vs section 21)

Section 8

• Applies to all assures tenancies

• Minimum notice period is between 14 days and two months, depending on the circumstances

• Grounds for eviction are set out of schedule 2

Section 21

• Applies to assured shorthand tenancies only

• Minimum notice period two months, but never within the first four months of the tenancy or during a fixed term

• No grounds for eviction required

Problems with the Housing Act 1988 and the current proposed reform

While designed to give landlords flexibility, section 21 has been criticised for creating housing insecurity, frequent short-notice evictions, and instability for tenants and families. 

The proposed reform: 

The government plans to abolish Section 21 and replace it with a reformed Section 8 framework.

Key changes:

1. Abolition of Section 21:

   • Landlords will no longer be able to evict without reason.

   • Every eviction will require a valid statutory ground under Section 8 (e.g. breach of tenancy, rent arrears, sale, or landlord’s own occupation).

2. Strengthened Section 8 Grounds:

   • The list of grounds for possession in Schedule 2 will be updated and expanded.

   • This ensures landlords can still recover possession when genuinely necessary — for example, if they wish to sell the property or move in themselves.

3. Simplified Court Process:

   • Court procedures for possession will be streamlined and made more efficient.

   • The aim is to give landlords faster access to justice when tenants breach their agreements.

General policy goals: 

Policy Aim	Explanation	Benefit
End no-fault evictions	Abolish s.21 to ensure landlords must justify possession	Greater tenant security
Fairer system	Balance landlord needs (e.g. sale, repossession) with tenant stability	Works “for both parties”
Stability and community	Tenants can stay longer and put down roots	Stronger, more settled communities
Landlord confidence	Strengthened s.8 grounds and faster courts maintain landlord protection	Encourages continued letting

Renters Rights Bill

Status of the Bill

• The Renters’ Rights Bill is a proposed law (a Bill), not yet enacted.

• It has passed first reading in the House of Commons.

• It largely reproduces the previous Renters (Reform) Bill that lapsed when Parliament was dissolved before the 2024 General Election.

Main Aims

• To reform private renting in England.

• To abolish assured shorthold tenancies (ASTs) and end “no-fault” evictions under Section 21.

• To create longer-term, more secure tenancies while keeping flexibility for tenants and landlords.

Key Legal Changes Proposed (Abolition of ASTs and Section 21)

• Removes all of Chapter II, Part I of the Housing Act 1988, which currently governs ASTs.

• This means:

  • No more ASTs (the default tenancy type since 1989).

  • No more Section 21 notices – landlords will no longer be able to evict tenants without giving a reason.Introduction of a New Section 4A – Monthly Periodic Tenancies which will replace ASTs with open-ended, monthly periodic assured tenancies, tenancies will have no fixed end date, any clause trying to create a fixed term will be invalid, the tenancy period (e.g., monthly) will match the rent payment period.

Changes to Schedule 2 – Grounds for Possession

Schedule 2 of the Housing Act 1988 (the list of grounds landlords can use to regain possession) will be amended and modernised.

New / Updated Grounds Include:

1. Landlord or family needs the property for occupation

   • Applies where the property is needed by:

     • The landlord

     • Their spouse/civil partner/cohabiting partner

     • Their parent, grandparent, sibling, child, or grandchild

     • Or a child/grandchild of the landlord’s partner

   • Must be needed as their only or principal home.

2. Landlord intends to sell the property

   • Enables possession where the landlord genuinely intends to sell.

3. Ground for agricultural workers

   • Allows possession if the property is needed to house an agricultural worker.

4. Abolition of Ground 3

   • The existing ground that allowed landlords to recover possession if the property had been a holiday let within the previous 12 months will be removed.

New tenant rights and protections

Area of Reform	What Changes	Impact
Rent arrears & Universal Credit	No eviction if arrears caused by delayed benefits	Protects vulnerable tenants
Rent increases	Must give 2 months’ notice; tenant can challenge via tribunal	Prevents unfair or excessive rent hikes
Pets	Tenants can request to keep pets; cannot be unreasonably refused	More tenant freedom and comfort
Landlord redress scheme	All landlords must join; complaints independently investigated	Improves standards and accountability
PRS Landlord Ombudsman	New national redress system for tenants	Simplifies dispute resolution

English legislation vs elsewhere (can the UK take note of international legislation?)

The German “rent brake” allows German state governments to cap rent increases in areas where the housing market is under pressure.

• In these areas, new rents cannot exceed 10% above the local average (“reference rent”) for comparable properties.

• Areas are designated for up to five years, based on evidence such as rising rents, housing shortages, or high rent-to-income ratios.

• The aim is to slow rent increases and protect tenants from being priced out of high-demand cities like Berlin.

Currently the Housing Act 1988 has market-based rents under assured shorthold tenancies. This means that landlords can generally charge whatever the market allows.

What are the two types of legal estates?

Under the Law of Property Act 1925, only two legal estates can exist:

1. Freehold = “estate in fee simple absolute in possession”.

2. Leasehold = “term of years absolute”.

All other rights in land are equitable interests, not legal estates.

What is the difference between a leasehold and a licence?

• Leasehold gives a tenant a legal estate in land (a property right).

• Licence only gives permission to occupy or use land (a personal right).

Street v Mountford [1985] AC 809 (HL) (established the distinction between a leasehold and licence)

Facts

• Mrs Mountford occupied rooms owned by Mr Street under a written agreement labelled a “licence.”

• She paid £37 per week and was the only permitted occupier.

• The agreement stated explicitly that it did not create a tenancy or confer Rent Act protection (which gave tenants security and rent control).

• Despite this, Mrs Mountford applied to register a fair rent, claiming she was a tenant.

Legal issue

• Was the agreement a lease or merely a licence?

• If it was a lease, Mrs Mountford had legal protections under the Rent Acts.If it was only a licence, she had none.

Held

• The agreement created a lease, not a licence — regardless of what the document was called.

Lord Templeman set out the four key features of a lease:

1. Grant of land = the occupier is given rights over land.

2. For a term = for a fixed or periodic duration.

3. At rent = usually, but not always, rent is paid.later cases (e.g. Ashburn Anstalt v Arnold [1989]) confirmed that rent is not essential.

4. With exclusive possession – the occupier can exclude the landlord and others (subject to agreed rights of entry).

If these features are present, the arrangement is a tenancy in law, even if the parties label it a “licence.”

Street v Mountford [1985] AC 809 (HL) (what is a lease/exclusive possession)

In Street v Mountford, Lord Templeman said that a lease (tenancy) is not just an agreement to occupy — it must give the tenant exclusive possession of the land for a term.

Lease (Tenancy)	Licence
An estate in land.	Not an estate in land.
Grants exclusive possession.	Only gives permission to occupy.
Tenant can exclude others (incl. landlord).	Licensee cannot exclude landlord or others.
Gives property rights similar to ownership (for a time).	Gives no property rights – just prevents trespass.

What Exclusive Possession Means

• The tenant has the right to exclude all others, including:

  • Strangers, and

  • Even the landlord, except for limited rights (e.g. inspections or repairs).

• This gives the tenant control and ownership-like rights for the duration of the lease.

• Therefore, a lease is considered an estate in land, a proprietary interest recognised by law.

Who can have exclusive possession but not be a tenant?

Exclusive possession alone does not always mean a lease, for example, it may belong to:

• A freeholder (owner in fee simple)

• A trespasser

• A mortgagee in possession

• A person occupying as an object of charity

Hence, exclusive possession must exist for a term, through a grant of land.

Say v Smith (1563) 1 Plowden 269, 75 ER 410 (defines term in a leasehold estate) 

Conclusion

• A valid lease must have certainty of term, the start and end dates must be clear and fixed from the outset

• Every contract sufficient to make a lease for years ought to have certainty in three limitations, the commencement of the term, the continuance of it, and the end of it (Say v Smith at 415). 

• If any of these are uncertain no valid lease exists

Duration of time for leases

A lease (term of years absolute) can last for any length of time:

• From very short (e.g. a week or a holiday rental)

• To very long (e.g. 99-year, 3,000-year, or even longer leases).

• There is no legal maximum, but the latest end date must be fixed from the outset.

• Authority: National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675.

Fixed term vs periodic tenancies

Fixed-Term Tenancies

• Have a defined start and end date (e.g. a 6-month or 5-year lease).

• Can include break clauses allowing early termination.

• Fully satisfy the certainty of term requirement.

Periodic Tenancies

• Renew automatically for each period (e.g. monthly or yearly) until notice is given.

• They seem uncertain because no one knows when they’ll end,
  but they are treated as valid since both parties always know:

  • The current period, and

  • How to end the tenancy (by giving notice).

Lord Templeman in Prudential Assurance Co Ltd v London Residuary Body [1992] 2 AC 386 explained that this works as if a new certain term is agreed at the end of each period.

Westminster City Council v Clarke [1992] 2 AC 288 (HL) (Aspects of exclusive possession)

Facts

Mr Clarke, a homeless man, was housed by Westminster City Council in accommodation designed for rehabilitation and supervision.
He claimed to be a secure tenant (under the Housing Act 1985), while the Council argued he was merely a licensee.

Legal issue

Did Mr Clarke have exclusive possession of his room – and therefore a lease – or did the level of Council control mean he only had a licence?

Aspects of exclusive possession

(Gray & Gray, Elements of Land Law)

1. Exclusory Power = the right to exclude others, including the landlord (except for limited rights, e.g. to repair).

2. Immunity from Supervisory Control = freedom from the landlord’s constant regulation or direction.

Both are needed for exclusive possession to exist.

Held

• Found not to have exclusive possession

• He was subject to strict supervision and rules:

  • No overnight guests or visitors after 11pm.

  • Could be moved to another room.

  • Required to follow directions from staff and wardens.

• The accommodation was run as a supervised hostel, not an ordinary rental property.

• The Council retained possession to manage and support the residents.

• Lord Templeman held that this level of control removed exclusive possession, meaning Mr Clarke was a licensee, not a tenant.

Bruton v London & Quadrant Housing Trust [2000] 1 AC 406 (HL) (distinction between lease as a legal estate in land vs a lease as a contractual relationship)

Facts

• London & Quadrant Housing Trust (LQHT) was a charity providing temporary housing for homeless people.

• It used flats owned by Lambeth Borough Council under a licence, not a lease (LQHT had no estate in land).

• LQHT gave Mr Bruton a written “licence” to occupy one of these flats.

• When repairs were not done, Mr Bruton sued under s 11 Landlord and Tenant Act 1985, which applies only to tenancies (not licences).

Legal issue

Did Mr Bruton have a lease, even though LQHT themselves only had a licence from the council?

Held

• The agreement gave Mr Bruton exclusive possession of his flat for a term.

• Therefore, as a matter of contract, there was a landlord–tenant relationship between LQHT and Bruton.

• However, this lease did not create a property right (estate in land) because LQHT didn’t own the land.

• The term ‘lease’ or ‘tenancy’ describes a relationship between a landlord and tenant…It is not concerned with whether the agreement creates an estate or proprietary interest (Lord Hoffmann at 45)

• It was found that Mr Bruton had a “non-proprietary lease” — a contractual tenancy that gave him rights (including repair obligations under s 11 LTA 1985), but no estate in land.

Legal principles

Lord Hoffmann drew a distinction between:

• A lease as a legal estate in land (a property right, binding on third parties), and

• A lease as a contractual relationship between landlord and tenant (binding only between those parties).

Mr Bruton’s was the latter — a purely contractual lease.

Antoniades v Villiers [1990] 1 AC 417 (HL) (licences vs joint tenants with a lease)

Facts

• A couple, Mr Villiers and Ms Bridger, rented a small attic flat from Mr Antoniades.

• Each signed a separate “licence agreement” saying:

  • They had no exclusive possession,

  • The landlord could move in or allow others to share the flat,

  • The agreement was a licence, not a tenancy.

• The couple lived there together as if it were their joint home.

Legal issue

Were they licensees (as the documents said) or joint tenants with a lease (and therefore Rent Act protection)?

Held

They were joint tenants, the agreements were a pretence designed to avoid the Rent Acts.

• The case reinforces Street v Mountford, courts look at substance over form, and pretend licence clauses will be ignored.

• Established the idea of “pretence” or “sham” clauses in lease/licence disputes.

Key legal principles

• Effect, not label

  • It doesn’t matter if an agreement calls itself a “licence.”

  • The court looks at the reality — if there’s exclusive possession for a term at rent, it’s a lease (Street v Mountford principle).

• No “contracting out” of tenant protections

  • Landlords cannot avoid the Rent Acts or tenant rights by calling a tenancy a licence.

• Joint occupation

  • Even though there were two separate agreements, the couple clearly rented together and sought joint exclusive possession, so they had a joint tenancy.

• Sham/pretence clauses ignored

  • The clause allowing the landlord to move in or share occupation was not genuine, the flat was too small and there was no real intention for him to share.

  • Such fake clauses are disregarded by the court.

AG Securities v Vaughan [1990] 1 AC 417 (HL) (licences vs joint tenants with a lease)

Facts

• Four unrelated men lived in a shared flat under separate agreements with AG Securities (the landlord).

• Each signed individual contracts at different times and paid different rents.

• When someone left, AGS found new occupiers — the remaining residents had no say in who replaced them.

• No one had an assigned room; residents simply shared the flat and worked out rooms among themselves.

Legal issue

Did the residents together have a joint tenancy (and Rent Act protection), or were they merely licensees?

Held

• They were licensees, not tenants under a lease

• There was no joint tenancy and no exclusive possession.

• The case contrasts with Antoniades v Villiers, here the “sharing” clauses were genuine, not sham.

• Reinforces that exclusive possession (in practice, not just in wording) is essential for a lease.

Legal principle

• No exclusive possession = no tenancy

  • AGS retained the right to introduce new occupiers at any time.

  • The residents could not exclude others from the flat.

  • Therefore, they did not have exclusive possession of the whole property.

• No joint tenancy

  • A joint tenancy requires the “four unities” (possession, interest, title, and time).

  • These were missing: the occupiers joined at different times, paid different rents, and had separate agreements.

  • None had agreed to share one lease together.

• Clauses were genuine

  • Unlike Antoniades v Villiers, the clauses allowing AGS to move in new residents were not a pretence.

  • AGS actually did so in practice — this was their genuine business model, not a trick to avoid tenant rights.

Requirements for a joint tenancy to be established

The Four Unities (Required for Joint Tenancy)

1. Unity of Possession

   • Each joint tenant must have the right to possess every part of the property.

   • In AG Securities, this might arguably have existed (each occupier could use the whole flat).

2. Unity of Interest

   • Each joint tenant must hold the same kind of interest — equal in extent, nature, and duration.

   • In AG Securities, the occupiers had different agreements, starting at different times, for different durations and rents, so this unity was missing.

3. Unity of Title

   • All joint tenants must derive their rights from the same document or act.

   • Here, the men signed separate contracts at different times so there was no common title.

4. Unity of Time

   • The interests of all joint tenants must begin at the same time.

   • Since each occupant moved in and signed their agreement at different times, this unity also failed.

What does the law of trespass to land do?

Trespass to land protects people in possession of land (owners or tenants) from direct physical interference. Indirect interference (like noise or smells) is covered under private nuisance, not trespass.

Key features of the law of trespass to land

• Direct interference only = must result directly from the defendant’s intentional or voluntary act.

• No need to prove damage = trespass is actionable per se.

• Claimant must be in possession = owner, tenant, or anyone with exclusive possession can sue.

• Focuses on consequences, not on duty or negligence (no “duty–breach–causation” structure).

Types of trespassing

Trespass occurs where someone:

1. Enters another’s land without permission.

2. Remains on land after permission is withdrawn.

3. Goes beyond permission while lawfully on land (e.g. doing something not allowed).

4. Places or leaves objects on someone else’s land.

Examples:

• Staying after being asked to leave.

• Leaning a bike against a wall without permission.

• Dropping or leaving objects on another’s land.

What does ‘land’ mean?

‘Land’ includes:

• The surface,

• The buildings on it,

• The airspace above, and

• The subsoil below, though there are limits.

Lord Bernstein of Leigh v Skyviews & General Ltd [1978] (plane flying over land is not considered as trespassing) 

Facts

• Skyviews flew over Lord Bernstein’s land and took aerial photos.

Legal issue

• Question: How high do land rights extend?

Held

• Rights extend only to the airspace necessary for ordinary use and enjoyment of the land and buildings.

• Above that height, landowners have no greater rights than the public.

• Rights are restricted to such height as is necessary for the ordinary use and enjoyment of land

• Overflying an aircraft at normal height does not constitute as trespassing

Bocardo SA v Star Energy [2010] (Land ownership extends underground only as far as it remains practically usable)

Facts

• Star Energy drilled diagonally underground beneath Bocardo’s land (no damage done).

Held

• This was a technical trespass, since landownership extends below the surface—but only to a reasonable depth.

• Compensation: £1,000, as no actual damage occurred.

• There must be a stopping point where ownership of strata becomes absurd

• Land ownership extends underground only as far as it remains practically usable

Smith v Stone (1647) (no liability if trespass was not as a result of a voluntary or intentional act) 

Facts 

• The defendant was forcibly carried onto the claimant’s land by others.

Held

• Not liable as he did not enter voluntarily.

• It is the trespass of the party who carried the defendant upon the land 

• There is no liability without voluntary action

League Against Cruel Sports v Scott [1986] (Intent to trespass is not required, only intent to perform the act)

Facts

• Hunt dogs entered private land while chasing deer.

• Question: Was the hunt master liable for their entry?

Held

• Yes, if he intended or failed to control the dogs so they entered the land.

• Liability arises where the defendant intends the act that leads to entry, or negligently allows it to happen

• Intent to trespass is not required, only intent to perform the act (e.g. letting dogs run) that results in trespass