Landlord and tenant — Housing Act 1988 — Error as to termination date in form of notice given before grant of purported assured shorthold tenancy — Whether assured shorthold tenancy granted — Whether requirements of section 8 apply to a notice served under section 21 of the Housing Act 1988
On November 6
1990 the first respondent granted the appellant a tenancy for a term certain of
one year from November 7 1990 of a furnished ground floor of premises at 64
Granville Road, London E17. On the same date the appellant was given a notice
of an assured shorthold tenancy stating that the tenancy was to be for a term
certain of at least six months. On March 16 1992 the respondents served a
notice requiring possession of the premises on May 25 1992 pursuant to section
21(1) of the Housing Act 1988. In Bow County Court Judge Goldstein made an
order for possession. The appellant appealed contending that the tenancy
granted on November 6 1990 was not an assured shorthold tenancy because the
notice of that date did not comply with the requirements of form 7 prescribed
by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988
(SI 1988 No 2203).
completion a specification of the date on which the tenancy in respect of which
the notice is served both commences and ends — A notice which gives a wrong
date is not ‘substantially to the same effect’ as the prescribed form — The use
of ‘May’ rather than ‘November’ in respect of the month of termination was not
an evident error, but a perplexity — The form predicates the insertion of the
correct date for the tenancy and a notice with an incorrect date is not
substantially to the same effect as a notice with a correct date. Accordingly,
the appellant was not granted an assured shorthold tenancy.
purpose would be served by subjecting a notice under section 21 (for which no
form is prescribed) to the requirements of section 8 of the 1988 Act. Those
requirements have no apparent relevance to the termination of an assured
shorthold.
The following
cases are referred to in this report.
Morrow v Nadeem [1986] 1 WLR 1381; [1987] 1 All ER 237; (1986) 53
P&CR 203; [1986] 2 EGLR 73; 279 EG 1083, CA
Tegerdine v Brooks (1977) 36 P&CR 261; [1978] EGD 49; 245 EG 51,
[1978] 1 EGLR 33, CA
This is an
appeal from the decision of Judge Goldstein, who on August 10 1992 in Bow
County Court ordered that the respondents, Charles Panayi and George Pyrkos,
recover possession of premises at 64 Granville Road, London E17, from the
appellant, Sarah Holmes Roberts.
Roger Bartlett
(instructed by G Houghton & Son) appeared for the appellant; Akhil Shah
(instructed by Dubow) represented the respondents.
Giving
judgment, MANN LJ said: This is an appeal against a decision of Judge
Goldstein made when sitting in Bow County Court on August 10 1992. By his
decision the judge ordered that the plaintiffs in the action do recover
possession of the furnished ground-floor dwelling-house at 64 Granville Road,
London E17, (hereinafter ‘the premises’), from the defendant in the action. A
money claim by the plaintiffs was adjourned generally and is not relevant to
this appeal. The defendant in the action was Mrs Sarah Holmes Roberts, who is
now the appellant, and the plaintiffs in the action were Mr Charles Panayi and
Mr George Pyrkos, who are now the respondents, and who are apparently now the
joint owners of 64 Granville Road.
There is not
an approved note of the judge’s decision because regrettably he has no
recollection or note of the case. However, I surmise that the basis of the
decision was as follows. On November 6 1990 the first-named respondent granted
an assured shorthold tenancy of the premises to the appellant for a term of 12
months; on November 4 1991 a new assured shorthold tenancy came into being for
a term of six months; on March 16 1992 a notice requiring possession on May 25
1992 was served on behalf of the respondents and accordingly the court was by
reason of section 21(1) of the 1988 Housing Act (hereinafter ‘the Act’) obliged
to make an order for possession in response to the respondent’s summons which
was issued on June 8 1992.
The appellant
was not represented in the court below, but appeared in person. In this court
she had the advantage of being represented by Mr Roger Bartlett, to whose
argument I pay tribute. The argument had two separate heads. The first was that
the grant on November 6 1990 was not of an assured shorthold but was of an
assured tenancy. The consequence of this argument succeeding would be that the
appellant enjoyed, and continues to enjoy, the security of an assured tenancy.
The second head was that, if it be assumed that the appellant had been granted
an assured shorthold, then the notice of March 16 1992 was inadequate to found
an order. The consequence of this argument succeeding would be that the
respondents would merely have to serve some further notice or notices and then
commence proceedings afresh should they so wish.
The
consequence if the first head of argument succeeds was not disputed by Mr Akhil
Shah, who appeared for the respondents both here and below. His case was that
there was no such consequence because the grant of November 6 1990 was the
grant of an assured shorthold.
The concept of
assured shorthold tenancies was introduced by Chapter II of Part I of the Act.
Section 20 provided, so far as material:
(1) . . . an assured shorthold tenancy is an
assured tenancy
(a) which is a fixed term tenancy granted for a
term certain of not less than six months; and
(b) in respect of which there is no power for
the landlord to determine the tenancy at any time earlier than six months from
the beginning of the tenancy; and
(c) in respect of which a notice is served as
mentioned in subsection (2) below.
(2) The notice referred to in subsection (1)(c)
above is one which —
(a) is in such form as may be prescribed;
(b) is served before the assured tenancy is
entered into;
(c) is served by the person who is to be the
landlord under the assured tenancy on the person who is to be the tenant under
the tenancy; and
(d) states that the assured tenancy to which it
relates is to be a shorthold tenancy.
(4) . . . if, on the coming to an end of an
assured shorthold tenancy . . . a new tenancy of the same . . . substantially
the same premises comes into being under which the landlord and the tenant are
the same as at the coming to an end of the earlier tenancy, then, if and so
long as the new tenancy is an assured tenancy, it shall be an assured shorthold
tenancy, whether or not it fulfils the conditions in paragraphs (a) to (c) of
subsection (1) above.
The form
prescribed for a notice under section 20(2) is contained in the Schedule to the
Assumed Tenancy and Agricultural Occupancies (Forms) Regulations 1988 (SI 1988
No 2203). The form prescribed for a notice under section 20 is form No 7 (r
3(7)) or (by virtue of r 2) ‘a form substantially to the same effect’. Form 7
includes:
1. You are
proposing to take a tenancy of the dwelling known as:
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2. This notice is to tell you that your tenancy is to be an assured
shorthold tenancy. Provided you keep to the terms was tenancy, you are entitled
to remain in the dwelling for at least the first six months of the fixed period
agreed at the start of the tenancy. At the end of this period, depending on the
terms of the tenancy, the landlord may have the right to repossession if he
wants.
The appellant
was served with a notice of an assured shorthold tenancy on November 6 1990. It
included this passage:
(1) You are proposing to take a tenancy of the
dwelling known as:
64
GRANVILLE ROAD, WALTHAMSTOW, LONDON E1.
The tenancy
must be for a term certain of at least six months.
from the
7th NOVEMBER 1990 to the 6th MAY 1991
(2) This notice is to tell you that your tenancy
is to be an assured shorthold tenancy. Provided you keep to the terms of the
tenancy, you are entitled to remain in the dwelling for at least the first six
months of the fixed period agreed at the start of the tenancy. At the end of
this period, depending on the terms of the tenancy, the landlord may have the
right to repossession if he/she wants.
The tenancy in
fact granted on the same day was by significant contrast for ‘a term certain of
one year(s) from 7 November 1990’. It is common ground that if this was the
grant of an assured shorthold, then the subsequent six-month tenancy granted on
November 4 1991 was, by reason of section 20(4) of the Act, also an assured
shorthold. However, Mr Bartlett’s submission is that the original grant was not
the grant of an assured shorthold because the prefatory notice was not by
reason of error as to termination, either in the form prescribed or in one
substantially to the same effect. This, he said, was fatal to the creation of
an assured shorthold because the statutory precondition in section 20(1)(c) had
not been satisfied. He further submitted the result of non-compliance could be
confusing to an uninstructed tenant who might be uncertain whether there was a
difference in security between the first and second six months of the term. Mr
Shah’s response, which was admirable in its simplicity, was first that the
appearance in the notice of ‘May’ rather than ‘November’ was an evident error
and, second, that the legislative purpose had been achieved because the
appellant was warned by para 2 of the notice that she was about to enter into a
shorthold with limited rights of protection after either six months or an
expiration in accord with the terms of the tenancy. That, Mr Shah submitted,
was sufficient.
The issue can
be narrowed. There is a statutory precondition that a notice should have been
served in the prescribed form. The prescribed form requires for completion a
specification of the date on which the tenancy in respect of which a notice is
served both commences and ends. The narrow issue is whether a notice which
gives a wrong date (here a termination) is ‘substantially to the same effect’
as one which gives the correct date. Authority and an evident error apart, I
find it difficult to say that it was. By ‘evident error’ I mean an error which
would have been evident to a person with the ordinary qualities of the
addressee. I would exclude a quality of obtuseness as being extraordinary. The
writing of ‘1793’ for ‘1993’ would be an evident error. The writing in this
case of ‘May’ rather than ‘November’ in my judgment would be a perplexity
rather than an evident error to an ordinary recipient proposing and taking a
tenancy of 64 Granville Road.
We were
referred to Tegerdine v Brooks (1977) 36 P&CR 261* and Morrow
v Nadeem [1986] 1 WLR 1381† , which are both decisions of this court in
regard to whether particular notices served under section 25 of the Landlord
and Tenant Act 1954 were in sufficient compliance with a statutory requirement
to serve a notice in the prescribed form or in one substantially to the like
effect. In the earlier decision Roskill LJ (as he then was) said (at p266):
If, as Bridge
LJ said during the argument, a notice is incomplete or inaccurate in a relevant
respect, then it does not matter that the tenant has not been misled by that
inaccuracy. If, however, the omission or inaccuracy is wholly irrelevant, as
was the omission here of notes 4, 5 and 7, then a fortiori there can be
no question of the tenant being misled and I see no reason why we should hold
here that this was a bad notice.
*Editor’s
note: Also reported at (1978) 245 EG 51, [1978] 1 EGLR 33.
† Editor’s
note: Also reported at [1986] 2 EGLR 73.
In this case
there is no evidence as to whether the appellant was actually misled. In the
light of Roskill’s LJ indorsement of the observation of Bridge LJ (as he then
was) I would have regarded any such evidence as irrelevant had it been
tendered.
In Morrow
v Nadeem the document which had been served failed correctly to identify
the landlord, Nicholls LJ (as he then was) said of the prescribed form (at
p1386B):
That form
predicates that the blank spaces preceding the phrase ‘landlord of the
above-mentioned premises’ will be duly completed with the name and address of
the person who is correctly so described.
Later he said
(at p1387G):
There might
perhaps be an exceptional case in which, notwithstanding the inadvertent
mis-statement or omission of the name of the landlord, any reasonable tenant
would have known that that was a mistake and known clearly what was intended.
Neill LJ (at
p1391F) spoke of an ‘exceptional case’ and Slade LJ agreed with both of the
preceding judgments.
Those
observations confirm the view which I independently formed. Form 7 requires for
its completion the specification of a date of termination and must therefore
predicate the insertion of the correct date for the tenancy ‘in respect of
which a notice is served’. A notice with an incorrect date is not substantially
to the same effect as a notice with the correct date and in this case the
mistake was not obvious. The short answer to Mr Shah’s submission is that,
although the legislative purpose of the primary legislation could perhaps be
met without a specification of date, the legislative requirement of the
secondary legislation is that there should be a date, and a correct one, in
respect of the tenancy granted.
I wish to give
no encouragement to arguments which are based on what were described to us as
‘slips of the pen’ and which I have exemplified as ‘1793’ for ‘1993’. However,
an insistence on accuracy seems to me likely to simplify the task of the county
court and, more important, to enable tenants to know with certainty of their status.
I would thus allow this appeal on the ground that the appellant was not granted
an assured shorthold tenancy because there was no proper prefatory notice. The
consequence must be that the appellant is an assured tenant enjoying the
protection appropriate to that status.
It is
unnecessary to determine Mr Bartlett’s second head of argument which developed
to the effect that a notice to recover
the purpose of section 8 of the Act (which relates to the recovery of
possession of dwelling-houses let on assured tenancies). The books give
conflicting answers but without reasons. In deference to Mr Bartlett’s
arguments I express my own opinion that no legislative purpose would be served
by subjecting a notice under section 21 (for which no form is prescribed) to
the requirements of section 8. Those requirements are understandable in the
context of a shorthold tenancy where possession can be recovered only on
certain grounds but they have no apparent relevance to the termination of an
assured shorthold. My opinion accords with that expressed in Megarry, The
Rent Acts (11th ed, 1989, vol 3, pp163-64) and (for what it is worth) with
the admonition in the form prescribed for section 8 (which is form 3 to the
1988 regulations) that it is not to be used where possession is sought under
section 21. Section 21 (which I need not recite) seems to me to provide a
special code in relation to that species of assured tenancies which are assured
strongholds.
For the
reasons I have given I would allow this appeal.
RALPH
GIBSON LJ agreed and did not add anything.
Appeal
allowed with costs.
