Tenancy of flat — Intention to create assured shorthold tenancy — Failure to provide written notice — Assured tenancy in fact created — Landlord seeking possession of property — Required as principal home for spouse — County court refusing order for possession — Court of Appeal allowing appeal against that refusal — Order for possession granted
In 1987 B purchased a freehold flat known as 207b Castelnau, Barnes, London SW13. She and her husband were unemployed. They had a tenancy of a small country cottage and intended to keep the flat for use as their London home if and when one or both of them again secured work in London. B decided to let the flat unfurnished until it was required and on March 30 1993 she let it to V at a rent of £650 per month, later increased to £700. B intended to create an assured shorthold tenancy under section 20 of the Housing Act 1988, terminable by B on notice at or after the end of the agreed period. However, in error she failed to serve on him a completed section 20 notice with the result that she created an assured tenancy under section 1 of the 1988 Act, terminable only on one of a number of grounds specified in Schedule 2 to the Act. V knew at the time of her mistake and deliberately took advantage of it by failing to draw it to her attention.
B claimed that she was entitled to terminate the tenancy on ground 1 in Schedule 2, namely that she required the property as a principal home for her husband. She maintained that she had, before entering into the tenancy agreement, notified V in writing that she might require possession for that reason.
In proceedings brought by B for possession of the property, the court refused to make the order sought on the basis that this was not an “exceptional case” which justified dispensing with the written notice under section 20. B appealed.
Held The appeal was allowed and an order for possession granted.
1. Ground 1 of Schedule 2 to the 1988 Act, if established by a landlord, entitled him to possession. The judge had no discretion. The landlord did not even have to show that his requirement of the property for use as his or his spouse’s principal home was reasonable. All that he had to establish was that he bona fide wanted, and genuinely had, the intention of using the property for that purpose: see Kennealy v Dunne [1977] 1 EGLR 50.
2. Discretion only came into play where a landlord did not serve the requisite written notice at the time of entering into the tenancy and the court had to consider whether it was “just and equitable” to dispense with the requirement.
3. In determining what was just and equitable for that purpose the court should look at all the circumstances of the case: see Bradshaw v Baldwin-Wiseman [1985] 1 EGLR 123.
4. If oral notice was given when a tenancy was granted, it might, with or without other circumstances, be an important factor favouring dispensation: see Fernandes v Parvardin [1982] 2 EGLR 104.
5. However, it did not follow that oral notice was a pre-requisite of such a decision. Nor was the absence of oral notice a reason for restricting dispensation to circumstances only where an “exceptional case” for it could be shown.
6. In this case the judge had had regard to most but not all the relevant circumstances, but gave the wrong weight to some of them and had, in any event, wrongly placed a test of exceptionality to them. In all the circumstances it was just and equitable to dispense with the requirement of written notice.
Both parties appeared in person.
