Guardian of the Property? The risk and reward of using property guardians to protect vacant property

A recent decision in the Bristol County Court highlights the risks of property guardianship schemes for property owners. Guardians live in commercial property which would otherwise sit unoccupied and, through their occupation, deter vandalism and squatting. The intention is that guardians occupy the property as licensees only and that they do not have security of tenure, however, in Camelot Property Management Limited and Camelot Guardian Management Limited v Greg Roynon [2017], Mr Roynon has been found to be a tenant of an ex-care home which he moved into as part of a property guardianship scheme.

Background

The property, a former old people’s care home, is owned by Bristol City Council. They engaged Camelot Property Management Limited to put in guardians in order to secure the property. As a consequence of this engagement Mr Roynon moved in in January 2014.

Issues in dispute

The dispute arose when Mr Roynon refused to vacate the property.

There was no dispute that the written agreement between Mr Roynon and Camelot Guardian Management Limited was clear in its intention to create a licence, not a tenancy. The agreement stated that it was for the guardians between themselves to decide who would sleep where and to notify these arrangements, and any changes to them, to Camelot Guardian Management Limited. The question was what the reality of the situation was.

It was also accepted, as set out in the leading case of Street v Mountford, that there are three necessary elements of a tenancy:

1. A fixed or periodic term certain;
2. In consideration of a premium or periodical payments; and
3. Grant of exclusive possession

The first two points were not in dispute. The issue to be decided was whether Mr Roynon had exclusive possession of any part of the property.

Decision

Interestingly the Court considered that if the written agreement had been followed it might have been possible to avoid giving Mr Roynon exclusive possession.

Camelot had included restrictions in the written agreement with Mr Roynon which they argued were enough to disprove exclusive possession. These included:

1. No overnight guests;
2. No more than 2 guests at any one time; and
3. Guests must not be left unsupervised and must be escorted from the property at the end of each visit.

The court felt that while these restrictions were onerous, they only restricted the way in which Mr Roynon could use his room. Such restrictions are a common feature of tenancies and so do not prevent exclusive possession. The court distinguished these restrictions from an occupier who had exclusive use of a room but whose landlord could move him between rooms as occasion demanded. In these circumstances an occupier would not have exclusive possession.

However the reality of the situation was that Mr Roynon chose two rooms and was given keys to these rooms. The other guardians saw these as Mr Roynon’s rooms. No other guardian had keys to the rooms and others would not enter without his permission. Whilst Camelot did undertake regular inspections these were visual only and were not inconsistent with Mr Roynon having exclusive possession.

The Court found these specific facts were sufficient to give Mr Roynon exclusive possession and that he had an Assured Shorthold Tenancy.

Consequences

Property owners looking to allow occupation without granting tenancies must therefore take care to avoid granting exclusive possession both in theory and then to ensure that is carried through in practice. They should also be sure that the reality of the living arrangements, as well as the formal agreements in place, do not amount to a tenancy.

With the rise of “professional” squatters and well organised groups seeking to use vacant property as a cheap way of dumping building and other materials a balance must be met between the risk created by empty properties and that of allowing potential proprietary rights to be created.