90 Year Lease or Contractual Licence?

On 8 May 2026, judgment was handed down in Quadrant-Brownswood Tenant Co-operative Ltd v Hitchens, an interesting possession claim in the County Court at Clerkenwell and Shoreditch.

The backdrop to the decision is the rule that a tenancy must be for a certain term. An occupancy agreement conferring exclusive possession cannot give rise to a tenancy if its duration is not certain at the outset; equally a periodic arrangement cannot be a tenancy if there is a fetter of uncertain duration on the giving of a notice to quit. In Mexfield Housing Limited v Berrisford [2012] 1 AC 955, the Supreme Court held that where such an agreement was entered into with an individual (as opposed to a company), it was one which the common law would have treated as a lease for life and which is converted into a 90-year term by s.149(6) of the Law of Property Act 1925. However, in Southward Housing Co-operative v Walker [2015] EWHC 1615, Hildyard J held that the Mexfield analysis could be disapplied where there was a clear contrary intention. In that case, the parties had attempted to create a weekly tenancy but the landlord could only serve a notice to quit in limited circumstances. It was decided that the Defendant occupied under a contractual licence, that more closely reflecting the parties’ intentions than a 90-year lease.

As in both Mexfield and Southward, in Quadrant-Brownswood, the Defendant was a member of a fully-mutual housing co-operative. The District Judge, following Southward, held that Ms Hitchens had only a contractual licence to occupy the home she had lived in for 26 years. The Senior Circuit Judge, His Honour Judge Richard Roberts, allowed Ms Hitchen’s appeal from the possession order. He held that on the proper construction of Ms Hitchens’ agreement, she had an express tenancy for life, which was converted into a 90-year lease, or contract therefor, under s.149(6).

These issues are particularly likely to affect mutual housing co-operatives and their members, since their arrangements are likely to be intended for the long term but do not benefit from statutory security of tenure.

Joanne Wicks KC acted pro bono for Ms Hitchens through Advocate; instructed by Kennedys LLP, also acting pro bono through Pro Bono Connect.

Read the full judgment