Landlord entitled to possession — Whether statutory tenancy becoming “lease” for purposes of varying closing order — First instance decision in landlord’s favour — Court of Appeal dismissing tenant’s appeal
In 1960, 54 Bentley Road, Market Drayton, was let on a weekly tenancy. In 1972, following an inspection by the local authority a closing order was made but not enforced and the tenant remained in possession paying rent. Notice to quit was served in April 1991 to expire one month later. It was common ground that had no closure order been made and the premises inspected for the first time, a statutory order to repair would have been made under the Housing Act 1985. At first instance the tenant was ordered to give the plaintiff possession. The tenant appealed on the grounds, inter alia, that the judge had erred in holding that she did not become a statutory tenant under the Rent Act 1977 when the landlord’s notice to quit expired; and that he wrongly held that the word “lease”, as it appeared in section 317 of the Housing Act 1985 and as defined in section 621, did not include a statutory tenancy. Further, the judge ought to have held that he had jurisdiction to vary the terms of the statutory tenancy. Under section 276 of the 1985 Act, nothing in the Rent Acts “prevents possession being obtained by the owner of premises in respect of which a closing order is in force”. Under section 317 of the 1985 Act, where there is an operative closing order for premises which were the subject-matter of a lease, “the lessor or the lessee may apply for an order determining or varying the lease”. In section 621, “lease” and “tenancy” have the same meaning. Under section 622, a “statutory” tenant meant one within the Rent Act 1977.
Held The tenant’s appeal was dismissed.
1. The tenant argued that at the end of the protected tenancy a statutory tenancy came into being; that fell within the definition of tenancy in section 621 of the 1985 Act and thus constituted a lease for the purposes of section 317. The judge had jurisdiction to entertain her counterclaim to vary the lease; if the court exercised that jurisdiction in favour of the tenant and the landlord were then required to repair, the closing order would be removed. Section 276 would cease to avail the landlord and the tenant would have a good defence to a possession claim.
2. However, there were difficulties of construing sections 621 and 317 to mean that a statutory tenancy was a lease within section 317(1). Further, even if section 317 could thus be construed, her status would stem exclusively from the Rent Acts, which provided that nothing shall prevent possession being obtained by the landlord.
3. A “statutory tenancy” was a compendium expression to describe the right of a tenant of protected premises to remain in possession of those premises, notwithstanding the determination of his contractual interest until such time as either he voluntarily gave up possession or the court made an order against him to deliver up possession. That remained unaffected by sections 2 and 3 of the Rent Act 1977. Thus, a statutory tenancy was not a tenancy properly so called and was not one to which section 621 referred. If it was not a tenancy within section 621, it could not be a lease within section 317. If when a closing order had been made, the Rent Acts did not prevent the owner obtaining possession of the premises, then the occupation of those premises no longer had the necessary status of irremovability.
Patrick Darby (instructed by Warren Upton & Garside, of Market Drayton) appeared for the appellant tenant; Ivan Woolfenden (instructed by Onions & Davies, of Market Drayton) appeared for the respondent landlord.
