Security of Tenure? You Are In The Army Now!

The Armed Forces may offer training, travel and potential excitement, as well as “a General’s baton in every infantryman’s knapsack”, but it does not give security of tenure to the occupiers of its accommodation, even under Human Rights Act legislation. So found the Court of Appeal in Helen Nicholas -v- The Secretary of State for Defence.

The Ministry of Defence and the Crown Estates enjoy a particular legal status that differentiates them in legal proceedings; including in the areas of personal injury, employment and landlord and tenant matters. That status has been challenged more recently, in particular through Human Rights Act legislation.

On 4th February 2015 the Court of Appeal considered such a challenge. Mrs Nicholas, whose former husband was a Squadron Leader in the RAF, challenged the termination of his licence to occupy family accommodation supplied to him “for the better performance of his service with the Crown”. The licence provided the contract could be terminated on 93 days notice in certain circumstances that included marital breakdown. Mr Nicholas left the accommodation in 2008. In 2012 the MoD issued possession proceedings that resulted in the High Court finding the Notice to end the licence. Notification had been sent to both Squadron Leader Nicholas at his new military accommodation and to Mrs Nicholas at the property, validly terminating the licence and granting a Possession Order.

Mrs Nicholas appealed saying, firstly, the lack of security of tenure with the Crown licences was in breach of Article 8 (the right to a private life and home) as there was unlawful discrimination against him, and also that the MoD acted unlawfully and in breach of the Human Rights Article 6 in seeking possession. Secondly, the notice terminating the licence was invalid as it did not comply with the exact requirement of being served on him only and at the property. The Court of Appeal found that Mr Nicholas, and therefore Mrs Nicholas, would not have enjoyed greater security of tenure if he had taken his licence from a private landlord or if the Crown had been added to Section 80 of the Housing Act 1985. Short term tenancies would either be Assured Shorthold tenancies or Secure tenancies. An Assured Shorthold tenancy only guarantees security for six months. However, a tenancy cannot be an Assured Shorthold tenancy if the landlord belongs to “Her Majesty in right of the Crown” or a Government Department. The Housing Act 1985 provides an exclusion to the secure tenancy regime where the tenant is an employee of the landlord and the accommodation is supplied for the better performance of his duties. For a tenancy to be secure the landlord must be one listed in Section 80 of the Housing Act 1985, which the Crown was not.

Mrs Nicholas had suffered no discrimination on the treatment compared with others in a similar position; that is as a former spouse of a licensee. Her former husband would have no security under a private sector licence or even from having an Assured Shorthold tenancy, nor as a secure tenant, as the Crown was not listed in Section 80. Squadron Leader Nicholas only had a service occupancy and the statutory codes of security of tenure gave no protection to a former spouse.

Although the Judges’ did not have to decide on the point, the Court of Appeal additionally noted that the MoD could also justify disadvantageous treatment; on the basis that security of tenure for military personnel would interfere with military effectiveness. The Court of Appeal also found that the Notice was valid and the contractual obligations had been complied with, as the relevant information had been conveyed to both Squadron Leader Nicholas and Mrs Nicholas and a reasonable recipient would have understood the requirement to vacate the property.

If you have any queries concerning the matters raised please contact
Jeremy Teall, Partner and Housing Management Team Leader on
020 8567 3477 or e-mail