Property Guardian Schemes
08 May 2017
A practice has grown up of companies that offer a service to owners of vacant commercial property, which involves them putting “guardians” into occupation. The usual intention of these schemes is to deter squatters and vandalism.
The guardians occupy the commercial premises for residential purposes. Where there is more than one guardian they are normally each permitted the use of a room as a bedroom and they share the use of other facilities such as kitchens and bathrooms.
The guardians in occupation generally sign agreements that are expressed to be licences. In a recent County Court case the court decided that the guardians who occupied the property were nonetheless assured shorthold tenants.
This case is not ground-breaking from a legal perspective but it does serve as a warning that the courts will look beyond the terminology used to decide whether an occupier is a tenant or a licensee.
This is a principle that has wider implications than guardian schemes. Documents are often expressed to be licences in the mistaken belief that this will avoid some of the consequences of the occupier being a tenant. The court will always look beyond the words on the page.
Anyone involved in a guardian scheme must bear in mind that the occupiers may not be required to leave on notice. The Protection from Eviction Act 1977 will normally apply even if the occupier is a licensee and the court may well decide that the occupier is a tenant.