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Landmark Judgement in Court of Appeal

09 February 2022

The Court of Appeal recently gave guidance on the issue of possession claims and the “tenant vs licensee” distinction in the Property Guardianship model.

It has been held that the occupiers of a building (Guardians) must satisfy the court that they have a realistic prospect of defending a possession claim, to avoid a summary possession order being made against them at a first possession hearing. Additionally, even if occupiers (Guardians) claim to enjoy exclusive possession of any building, this on its own is not sufficient to claim any tenancy exists and that the court must have regard to the terms of the contract.

A previous judgement given in the High Court applied a lower threshold as to whether a Guardian (or Tenant) had the right to a full hearing, which would have delayed matters by many months and would have made the Guardian model unworkable.

Thankfully, the Judge in the Court of Appeal acknowledged that it was essential to the provision of guardian services that the property could be handed back when required.

In summary, the risk of a property owner not obtaining vacant possession when required has been significantly reduced.

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