Fighting on the beaches

Originally used as changing rooms for Victorian beachgoers, beach huts tend to be simple structures that are relatively cheap and easy to construct. Even so, they often change hands for substantial sums of money – but there do not appear to be many reported cases on their legal status. In Gilpin v Legg [2017] EWHC 3220 (Ch) the court had to decide whether a landowner was entitled to require the occupiers of beach huts to vacate land at Portland Bill. The beach huts had been installed many years previously and there was very little to show what the parties had agreed. In due course, the current landowner wrote to the occupiers stating that he wished to put the arrangements on a formal footing. He considered that they were licensees and asked those who refused to sign new agreements to remove their huts from his land – but five of the hut owners refused to budge. Chattels or realty Were the beach huts chattels, or part of the realty? The judge did not explain why this mattered. However, the answer may have been relevant to who would have to pay for the removal of the huts from the land. Whether an article forms part of the realty is a question of law. In Elitestone Ltd v Morris [1997] 2 EGLR 115, the House of Lords held that a wooden bungalow resting on its own weight had become part of the land. It was intended to be permanent and had none of the features of removability inherent in, for example, a caravan or a boat. It was not readily transportable as a unit; its removal would have involved its demolition or destruction, and it had been annexed to the land in order to become part of it. The huts were not dwellings and the planning permissions for them required their removal unless the permissions were renewed. They were, for the most part, constructed out of pre-fabricated wooden panels and were not attached to the ground (or only very slightly to protect them from the wind). Only one of the huts was likely to suffer serious damage if it were moved. But it could have been dismantled without damage when it was first installed and the fact that materials deteriorate over time, making it more difficult to move something, should not affect the status of an item. In the judge’s view, the huts were chattels that had been stationed on the land so that the occupiers could use and enjoy them. Lease or licence The occupants of the beach huts claimed that they had been granted five-yearly periodic tenancies (calculated by reference to the original temporary planning permissions), as opposed to licences. Alternatively, they claimed to have annual periodic tenancies of the parcels of land on which the beach huts stood. The judge reminded us that the hallmark of a tenancy is the grant of exclusive possession of land for a fixed or renewable period, usually in return for monetary payment: Street v Mountford [1985] 1 EGLR 128. The fact that parties might use language more appropriate to a licence will be irrelevant if an agreement has the identifying characteristics of a lease. So too is the absence of a proviso for re-entry (especially if an arrangement is oral). The beach huts occupied the parcels of land on which they stood and no one else could use them. This meant that the occupiers had exclusive possession and were tenants of that land. Length of term The judge decided that the tenancies were annual periodic tenancies because the rents were expressed to be payable annually. It was also relevant they had been created orally and the combined effect of sections 52(1) and 54(2) of the Law of Property Act 1925 means that tenancies for more than three years must be created by deeds. The tenancies had changed hands subsequently. But the judge avoided arguments about the legality of the changes in ownership, despite the decision in Crago v Julian [1992] 1 EGLR 84 that even the shortest of leases must be assigned by deed. New hut owners had been accepted in place of the previous ones in return for payments to the site owners. Whether there had been assignments in equity that were recognised by the site owners, or surrenders and re-grants, was not important. The judge also criticised and sidestepped the decision in Mexfield Housing Co-operative Ltd v Berrisford [2011] UKSC 52; [2011] 3 EGLR 115, refusing to apply section 149(6) of the 1925 Act to convert the tenancies into 90-year terms. The original site owners may have indicated that previous occupiers could stay indefinitely, if they paid their rent and behaved properly. But any such promises were made after the arrangements began and formed no part of the terms originally agreed. So the agreements were not leases for life or tenancies for an uncertain period. And, if they were, they would be terminable in accordance with section 149(6) because the persons to whom the promises were made were now dead. Termination The landowner had served two separate notices to quit on the occupiers. The first notices were too short to be effective, thanks to the common law rule that annual periodic tenancies are determinable on six months’ notice expiring at the end of a completed yearly period. However, the second notices had been effective and, as a result, the occupiers were no longer entitled to station their beach huts on the landowner’s land. Allyson Colby is a property law consultant