Weekly review: 25th – 28th March 2013

Leases: licences: possession: service occupancy

An employee’s occupation of property of his employer is in possession if either

(i) the occupation was necessary for the performance of his duties as employee, or

(ii)

(a) he was required by the terms of the contract or by the employer’s decision made in accordance with those terms to live in the house, and

(b)  this was for the better performance of his duties.

(Glasgow Corporation v JohnstoneCommissioners of Valuation for Northern Ireland v Fermanagh Protestant Board of EducationWragg v Surrey County CouncilFox v Dalby)

The phrase, ‘for the better performance of his duties’  invites a consideration of the parties’ intentions when including the express term in the contract. The intention is an objective intention: there is a need for a real, objective link between the requirement and the better performance of the duties.

‘Better’ does not mean ‘efficient’. It is a true comparative. The question is whether the inclusion of the term rests on a reasonable judgment that performance of the duties would be materially assisted by the occupation (better with the occupation than without it). (Wragg v Surrey County Council).

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