Thomas Gibson v Ian Douglas & Anr [2016] EWCA 1266
The concept of what constitutes “reasonable notice” to terminate a residential licence to occupy was recently discussed by the Court of Appeal in Thomas Gibson v Ian Douglas & Anr [2016] EWCA 1266.
Background
A key issue for property owners is ensuring that they can recover possession of their property as quickly as possible. Conversely, occupiers will want to ensure that they are given reasonable notice that their landlord wants possession so that they can make other arrangements.
Property owners may be required by statute to give occupiers specific periods of notice before they can recover possession. For example, in the case of residential licences protected by the Protection from Eviction Act 1977 (“1977 Act”), occupiers must be given at least 4 weeks’ notice in a prescribed form to terminate the licence.
Where there is no specific notice period required by statute and the lease or licence is not for a fixed period, landlords need to consider at the outset how much notice they need to give occupiers before recovering possession.
It is vitally important to give the correct period of notice to an occupier because giving incorrect or insufficient notice can lead to possession claims being dismissed by the court, claims for damages and, in the case of residential property, a criminal penalty of up to two years in prison. If statute does not apply, the terms of the contract will govern the notice period the occupier must be given. If the contract is silent on this point, the courts will require that the occupier is given “reasonable notice” to remove their possessions and vacate the property.
For example “reasonable notice” may be required to terminate an agreement:
- Where an occupier is sharing accommodation with a member of the family of the landlord or licensor.
- That was granted as a temporary measure to a trespasser.
- To occupiers of holiday accommodation.
- Granted otherwise than for money or money’s worth.
- For some hostel accommodation.
Whilst these situations are relatively rare, purchasers will from time to time acquire property (such as mixed-use developments) where occupiers claim to occupy part of the property under one of the above. They can also arise inadvertently in the course of property management.
In the case of contractual periodic tenancies, reasonable notice is based on the length of the tenancy period (which is normally the same as the interval between rent payments). For example, a yearly tenancy requires at least six months’ notice.
Facts of the case
The claim was brought Thomas Gibson (Licensee) for what he asserted was his unlawful eviction by Lillian Douglas (Landlord) and her son, Ian Douglas (Mr Douglas), from the Landlord’s home.
Mr Gibson had also been living at the premises for some four or five years, and after a time began a romantic relationship with the Landlord. It was common ground that the Licensee was only entitled to reasonable notice to vacate the property, because the Landlord was living at the property with the Licensee.
The Landlord's health deteriorated and she was admitted to hospital and diagnosed with dementia or Alzheimer’s. She then made a number of allegations against the Licensee and stated that she did not want to return to the property while the Licensee remained there.
Mr Douglas attended the property with the Police following this complaint and, following an altercation with the Police, the Licensee was summarily evicted from the property.
He then sought to claim damages for unlawful eviction against the Landlord and Mr Douglas.
The Court’s Decision
The Court of Appeal disposed of the Licensee’s claim on grounds other than whether he was given “reasonable notice”. However, the court made a number of interesting observations on the meaning of reasonable notice, which have general relevance.
Unless the notice period is specified in the licence itself, the licensee will be entitled to “whatever in all the circumstances is a reasonable time to remove himself and his belongings”.
The Court noted that at one end of the spectrum, the unwanted visitor who presents himself at the front door, is asked in but then told to go, must leave immediately, taking the quickest route back to the highway and not delaying. Reasonable notice in that case is measured in minutes. By comparison, a notice period of two years was considered reasonable in a claim for possession against the Earl of Macclesfield to terminate his licence of a castle. This was due in part to his long occupation and extensive possessions which would need to be removed (Parker v Parker [2003] EWHC 1846 (Ch)).
The Court suggested that in a case like Gibson, the period “would be unlikely to be measured in minutes or hours or days. On the other hand, it would be more likely to be measured in weeks rather than months or years”.
Practice points
Cases like this are often fact-specific. However, the case provides a reminder that the circumstances of each case must be taken into account when determining what is a reasonable notice period.
In other cases, the court has held that the following factors ought to be considered when determining what is reasonable notice (whether in a commercial or residential context):
- The length of occupation of the premises;
- The ease with which their possessions can be removed; and
- The ease with which the occupier can find alternative accommodation.
The judgment in Gibson suggests that, in residential cases, a number of weeks’ notice is likely to be the minimum to terminate any licence lawfully. Depending on the circumstances, the minimum period of 4 weeks’ prescribed by the 1977 Act is a useful guide for determining what “reasonable notice” may be for residential property. However, a longer period may be appropriate in cases where the occupier has been in residence for a long time or where it would be difficult for them to relocate at short notice.
Published: 25 March 2017
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