Service occupancy: tenancy or not?

In Fox v Dalby ((1874 – 75) L.R. 10 C.P. 285) D was a sergeant in the army. He was required by army rules to live in a house near stores where ammunition and equipment were kept if his commanding officer so required. This was so that he could look after the stores. Not everyone with his job was required to live near the stores and those who did not could still properly perform their duties. The question was whether he was a tenant or whether he was in possession on behalf of his employer. It was held that he was not a tenant since (i) he was required to live in the house, and (ii) this was for the better performance of his duties.

Lord Coleridge C.J. said:

‘[I]f either ingredient exists, – if the occupation be necessary for the better performance of the duties required to be performed by the party, or if, though it be not necessary for their performance, he is required by the authority by which he is appointed to reside there in order to perform them, the occupation is not an occupation as tenant.’ (294)

Brett J. said:

‘[W]here a person situate like the respondent is permitted (allowed if so minded) to occupy premises by way of reward for his service, or as part payment, his occupation is that of tenant; but … , where he is required to occupy them for the better performance of his duties, though not specifically required, his occupation is not that of tenant.’ (295)


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