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• United Kingdom

• Litigation and dispute management
• Real estate
• Real estate dispute resolution

06-07-2017

Hertfordshire County Council v Bryn Colin Davies [2017] EWHC 1488 (QB)

An occupier of a residential dwelling is normally to be afforded a minimum of 4 weeks’ notice under the Protection from Eviction Act 1977. In contrast, a service occupancy agreement (“SOA”) grants an employee a personal licence to occupy a property owned by their employer, for so long as they remain employed, provided the employee is required to live at the property for ‘the better performance of their duties’. This requirement is an important characteristic of a SOA.

The High Court has recently held that the exception afforded to service occupancy agreements (pursuant to Schedule 1, paragraph 2 of the Housing Act 1985, that they are automatically terminated upon termination of an employee’s employment) is not incompatible with the Human Rights Act 1998 (“the HRA”).

Mr Davies was a caretaker at a school owned by Hertfordshire County Council (“the Council”). Mr Davies and his family lived at a bungalow on school grounds pursuant to a “service occupancy – tenancy agreement” which he had entered into with the Council. That agreement expressly required him to reside at the bungalow for the better performance of his duties.

Following a back injury sustained in 2011, Mr Davies’ job description was amended in 2014 to state that he “may” be required to live on site. He was not advised subsequently that he was not required to live at the bungalow, however.

Mr Davies was dismissed for gross misconduct in June 2015 and was served with a notice to quit (which the court ultimately held the Council need not have issued).

Possession proceedings were subsequently issued by the Council and Mr Davies contested them, in part, on the basis that the exception afforded to service occupancy agreements was incompatible with Article 14 (discrimination) of the HRA, when read with Article 8 (private and family life).

In deciding that the exception was not incompatible with such rights the Court stated that the exception is “rational” as “if a dwelling is only let for the purpose of a service occupancy, there is no reason why the occupier should have security of tenure, and a good reason why not: if his employment ceases, the [employer] can then house his replacement there”.  

The Council was accordingly entitled to possession of the bungalow. 

Key points

• this decision will be good news to all employers who permit employees to reside at on-site accommodation; in particular University’s and Local Authorities
• it is vital that a purported SOA expressly requires the employee to live at the relevant property for ‘the better performance of their duties’
• this requirement is key as the court will draw a distinction between an employee who occupies a dwelling provided by his employer (as part of their remuneration) and an employee who occupies a dwelling for the purpose of better performing their duties