Service occupiers - take care with caretakers!

Tenancies of residential premises are capable of attracting security of tenure, meaning that the landlord will bee ntitled to possession only in limited circumstances.  This can create problems in scenarios such as where an Academy allows a caretaker to occupy a property located on school premises.

However, where an employee is granted theright to occupy a property in order to permit the employee to perform better his/herduties as an employee, or because it is essential that the employee occupiesthe relevant premises for those purposes, a service occupancy is likely toarise. 

A genuine service occupancy will notattract security of tenure, and the employee's right to occupy the propertywill be co-terminous with his/her employment.

To be certain of granting a serviceoccupancy, the employer must ensure that the contract of employment contains anobligation on the part of the employee to reside at the relevant property"so as to perform better his/her duties under the contract ofemployment".  This contractualrequirement may also be found in a written occupation agreement.  Please note, however, that this wording willnot be sufficient on its own to create a service occupancy.  There must be a genuine need for the employeeto reside at the property to better perform his/her duties.

In the event that the contract ofemployment and/or occupation agreement does not include the wording above, theemployer must show that such a provision should be implied into the employmentcontract.  Such a term will only beimplied in limited circumstances and where it is essential for the individualto occupy the property to perform his/her duties.  It is prudent therefore to make sure that theemployment contract and/or occupancy agreement contains the requisite wording,whether the Academy is creating a new service occupancy, or inheriting aservice occupancy when it converts into an Academy.