Notes and Questions 17.5

Leases and bailment 639

from arising, whereas lack of title does not? In this case, the council lacked capacity, whereas the trust lacked title. Why then, according to Millett LJ, did the agreement between the trust and Mr Bruton not give rise to a tenancy by estoppel? (See further section 10.5.5.3 above.)

6How does this non-proprietary lease differ from a tenancy by estoppel? If, during the course of the ‘lease’, the grantor acquires a sufficient proprietary interest, will the lease automatically become proprietary?

7There are other possible analyses of the situation in Bruton which would have allowed the House of Lords to avoid the conclusion that Mr Bruton had a nonproprietary lease. Consider the following:

a.Could it have been argued that, even if Mr Bruton was only a licensee, he still had a ‘lease’ for the purposes of section 11 of the Landlord and Tenant Act 1985, and therefore the housing trust was bound by the statutory duty to repair? Some public-sector licences come within the definition of ‘secure tenancy’ under the Housing Act 1985 as amended (see section 19(3)) and consequently the licensee is entitled to the limited degree of security of tenure conferred by that Act. There are some very specific detailed exclusions from the status of secure tenancy, including some (but not all) lettings/licences to homeless persons and students, but it is not clear from the facts whether any of these exceptions would have applied here. Assuming none of them applied, it is at least arguable that Mr Bruton was a secure tenant of the housing trust: the relevant wording of the Housing Act 1985 as amended does not appear to exclude the possibility that the ‘landlord’ of a secure tenancy may be a public sector body which lacks the capacity and/or title to grant a lease (see sections 79 and 80). Since ‘lease’ in section 11 of the Landlord and Tenant Act 1985 (defined in section 17 of the Act) clearly applies to tenancies which are ‘secure tenancies’, should it not apply also to licences which are ‘secure tenancies’? There seems no reason in principle why the grantors of one should have different repairing obligations from the grantors of the other.

b.Alternatively, could it be argued that Mr Bruton had a lease which was granted to him by the council (which did have capacity and title to do so), acting by its agent, the housing trust, and that therefore the council had a statutory duty to repair under section 11 of the Landlord and Tenant Act 1985? Whatever the agreement between the council and the housing trust actually said, the council authorised the housing trust to give occupiers of the premises a degree of control over the premises which amounted in law to possession. In other words, even though the agreement purported to prohibit the housing trust from granting leases, its sole purpose was to authorise the trust to grant on the council’s behalf rights to residential occupiers which would in law amount to leases.

c.Another possible analysis is to distinguish possession acquired as a matter of fact, which does not give rise to a lease, from possession granted by a person with capacity to an owner, which does. Mr Bruton can be said to have acquired possession of the house by moving in and establishing the requisite degree of physical control over it, with the intention of excluding all others, with the