By virtue of paragraph 1(1) of Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 any purported grant of a legal estate to a minor will not be effective to pass the legal estate, but will operate as a declaration that the premises are held in trust for the minor.

This essentially means if a landlord grants a tenancy to a minor, then any purported tenancy is held in trust by the landlord for [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']the occupier who becomes the beneficiary to the trust. In order to end the occupation, the landlord must first end the trust which can be very complex.

The Court of Appeal had to consider how a tenancy given to a minor could be ended. In Hammersmith and Fulham London Borough Council v Alexander-David [2009] EWCA Civ 259, The claimant aged 16 applied to the local authority for accommodation under the Housing Act 1996 because she was homeless. The council discharged its duty and entered an agreement on its standard form for adults, where the parties were referred to as landlord and tenant, which gave her a tenancy of the premises.

It was held that a landlord with full capacity to grant a legal tenancy and who granted a tenancy without any express qualification to the effect that something less than a legal tenancy was being granted could not subsequently say that what he had granted was not a legal tenancy but an equitable tenancy. Paragraph 1(1) of Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 therefore applied to the tenancy granted to the claimant.

For so long as the council held the premises in trust under that Act for the claimant it could not lawfully destroy the subject matter of the trust by serving notice to quit on her.

See here for the Times report on this case.

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Waller, Longmore and Jacob L.JJ.

Note: This case will only have minor  effect on assured shorthold tenancies

In 1999, the defendant’s father was granted a secure tenancy of a flat by the local authority. At that time, the defendant was living in her own property. In 2002, the father’s health deteriorated to the point where he needed assistance and the defendant stayed with him three nights a week. His health continued to deteriorate and the defendant moved in with him full-time on June 20, 2004. In 2005, the defendant allowed friends to stay in her property and, in early June 2005, let it on a six-month assured shorthold tenancy.

On June 30, 2005, more than 12 months after the defendant had moved into the flat, the father died. The authority commenced possession proceedings which were defended on the basis that the defendant had succeeded to her father’s secure tenancy under s.87, Housing Act 1985, because she had “resided with” him for 12 months prior to his death. The county court judge found that the defendant had occupied the property as her only or principal home for 12 months prior to her father’s death but that she had not “resided with” him for that period. The defendant appealed.

The Court of Appeal [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']dismissed the appeal. Mere physical presence is not enough to amount to “residing with” for the purposes of s.87, 1985 Act; there must – to a significant degree – be an intention which can be characterised as making a home with the tenant; just staying in the property is not enough (Swanbrae Ltd v Elliott (1987) 19 HLR 86, CA). The question of residence is one of fact and degree for the judge; it is not enough to invite an appeal court to assess the facts and degree differently from the way it had been done below; to succeed on appeal, an appellant must show that the judge either had misdirected himself or had reached a conclusion which could not reasonably be reached (i.e. perversity), which the defendant had not done.[/amember_protect]