Housing Act 1988 –– Assured shorthold tenancies –– Section 20 notices –– Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 –– Whether section 20 notices “substantially to same effect” –– Whether section 20 notice misstating commencement date valid –– Whether section 20 notice misstating term date of tenancy valid –– Whether section 20 notice misstating guidance notes valid
In each of these conjoined appeals, the issues concerned the validity of notices served under section 20 of the Housing Act 1988, and whether each notice was in a form substantially to the same effect as that prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988.
Ravenseft Properties Ltd v Hall: The respondent landlord served on the appellant tenant a section 20 notice, dated 31 July 1996, that related to a tenancy to be granted for a term commencing on 24 June 1996. On 27 August 1996, the parties completed an agreement in which the landlord granted to the tenant a four-year term of a flat commencing on 24 June 1996. The lease contained a clause by which the tenant acknowledged that the tenancy was intended to be an assured shorthold tenancy and that a notice satisfying section 20 had been served on her. In proceedings for possession, the county court judge held that the section 20 notice was valid, as it correctly stated the start date of the term of the proposed tenancy. The tenant appealed.
White v Chubb: The appellant landlord’s predecessor in title served a notice on the respondent tenant on 24 September 1993, purportedly under section 20, in respect of an assured shorthold tenancy commencing on 1 October 1993 for a six-month term. The notice specified an incorrect end date of 1 May 1994 for the proposed term, when it should have been 1 April. The landlord appealed the recorder’s decision that the section 20 notice was invalid.
Kasseer v Freeman: Prior to the grant of an assured shorthold tenancy, the appellant tenant was served with a section 20 notice with guidance notes containing errors or differences when compared to those prescribed by the regulations. The county court judge held that the notice was valid and made an order for possession. The tenant appealed.
Held: Ravenseft v Hall: The appeal was dismissed. The start date of the tenancy in the section 20 notice was wrong; a tenancy cannot commence before the date of its grant. However, the notice was “substantially to the same effect” as the prescribed form in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy. It was a valid notice.
Per Lord Phillips MR: The test to be applied, when answering the question of whether a section 20 notice is valid, is whether, having regard to the particulars of the tenancy in the notice and to all the relevant circumstances, the tenant should reasonably have concluded, when he entered into the tenancy, that the notice he had received related to it.
White v Chubb: The appeal was allowed. In answering the only statutory question, whether the notice was in the prescribed form or “substantially to the same effect”, it was necessary to apply the approach to construction laid down in Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] 1 EGLR 57, in the contextual setting of the statutory objective in requiring the giving of a notice in the prescribed form. Even if the mistaken end date of the tenancy was not obvious to the reasonable recipient, that did not prevent the notice, when read by a reasonable reader, from fulfilling the function that it was meant to perform.
Kasseer v Freeman: The appeal was dismissed. The notice, despite its errors and omissions, conveyed to the tenant the substance of the prescribed form, and satisfied the statutory objective.
The following cases are referred to in this report.
Andrews v Brewer; sub nom Brewer v Andrews (1997) 30 HLR 203
Clickex Ltd v McCann [1999] 2 EGLR 63; [1999] 30 EG 96; (2000) 32 HLR 324
Manel v Memon (2000) 80 P&CR D22; [2000] 2 EGLR 40; [2000] 33 EG 74; (2001) 33 HLR
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749; [1997] 2 WLR 945; [1997] 3 All ER 352; [1997] 1 EGLR 57; [1997] 24 EG 22 and 25 EG 138
Panayi v Roberts [1993] 2 EGLR 51; [1993] 28 EG 125; (1993) 25 HLR 421,
Roberts v Church Commissioners for England [1972] 1 QB 278; [1971] 3 WLR 566; [1971] 3 All ER 703, CA
York v Casey [1998] 2 EGLR 25; [1998] 30 EG 110, CA
Ravenseft Properties Ltd v Hall: This was an appeal by the tenant, Brigid Agatha Hall, from a decision of judge Cooke, sitting in Central London County Court, making an order for possession in possession proceedings by the landlord, Ravenseft Properties Ltd, against the tenant.
Kim Lewison QC and Joanne Harris (instructed by Bindman & Partners) appeared for the appellant; John Male QC (instructed by Nabarro Nathanson) represented the respondent.
White v Chubb: This was an appeal by the landlord, Peter White, from a decision of Mr Recorder Hetherington, sitting in Bristol County Court, dismissing the landlord’s claim for possession in proceedings by the landlord against the tenant, David Chubb.
Geraint Jones QC (instructed by Bradford & Co) appeared for the appellant; Paul Morgan QC and Stephen Cottle (instructed by Bobbetts Mackan) represented the respondent.
Kasseer v Freeman: This was an appeal by the tenant, Fawzi Kasseer, from a decision of Judge Winstanley, sitting in Wandsworth County Court, in possession proceedings by the landlord, Carmela Freeman, against the tenant.
Paul Morgan QC and Kevin Farrelly (instructed by HCC Hann & Co) appeared for the appellant; Timothy Fancourt (instructed by Triggs Wilkinson Mann) represented the respondent.
Giving judgment, MUMMERY LJ said:
Introduction
1. This is a judgment on three different appeals raising a common question. Each appeal concerns the validity of a notice served by a landlord on a tenant under section 20 of the Housing Act 1988 (the 1988 Act). In each case, the tenant contends that the notice is invalid because it is not, in one or more respects, in the form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations SI No 2203 (the regulations) made under the 1988 Act, or in a form substantially to the same effect.
2. If, despite departure from the prescribed form, the notice is valid, the tenancy in question was an assured shorthold tenancy, and the landlord was entitled to an order for possession. If, however, departure from the prescribed form makes the notice invalid, the tenancy is an assured tenancy, and the landlord is not entitled to a possession order in the current proceedings.
3. The first appeal to be heard was Ravenseft Properties Ltd v Hall (the Ravenseft appeal). That is an appeal by a tenant against a ruling of Judge Cooke in Central London County Court on 4 April 2001 that the notice was valid, even though it contained an error as to the start date of the tenancy. The hearing of the appeal took place in London on 19 October 2001. Shortly before the hearing, the Civil Appeals Office discovered that another appeal raising the same point on different facts (White v Chubb) (the White appeal) was fixed for hearing before a differently constituted Court of Appeal sitting in Exeter on 30 October 2001. The White appeal was brought by a landlord against a ruling of Mr Recorder Hetherington in Bristol County Court on 30 March 2001 that a notice served by the landlord was invalid, as it had mistakenly stated the end date of the tenancy as one month later than the correct date. During the course of the hearing of the Ravenseft appeal, Mr Kim Lewison QC, leading counsel for the tenant, informed the court that there was also pending a third appeal (Kasseer v Freeman) (the Kasseer appeal) in which he was instructed by the tenant, and in which he was advancing similar arguments. The Kasseer appeal was by the tenant against a ruling of Judge Winstanley in Wandsworth County Court on 17 July 2001 that a section 20 notice was valid, even though parts of the textual matter within it departed from the language and meaning of the prescribed form.
4. Arrangements were accordingly made for the Court of Appeal, sitting in Exeter, to hear the White appeal and the Kasseer appeal on the same day. Judgment had already been reserved in the Ravenseft appeal. Judgment was then reserved in the two other appeals.
Statutory provisions
5. The material parts of section 20 of the 1988 Act, which continue to apply to pre-Housing Act 1996 assured shorthold tenancies, provided as follows:
(1) Subject to subsection (3) below, an assured tenancy is an assured shorthold 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 that tenancy; and
(d) states that the assured tenancy to which it relates is to be a shorthold tenancy.
6. The effect of the Housing Act 1996 was to remove the notice requirements for the creation of assured shorthold tenancies after 28 February 1997. All the tenancies affected by these appeals were created before that date.
7. Section 45 (1) of the 1988 Act defined “prescribed” as meaning:
prescribed by regulations made by the Secretary of State by statutory instrument.
8. The regulations were made in 1988. Drafting and consequential amendments to the regulations were made in 1990 and 1993, but the amendments are not material to these appeals. Regulation 2 provided:
In these Regulations any reference to a section is to a section of the Housing Act 1988 and any reference to a numbered form is a reference to the form bearing that number in the Schedule to these Regulations, or to a form substantially to the same effect.
9. Under regulation 3(7), the form prescribed for a notice under section 20 of an intention to grant an assured shorthold tenancy was Form no 7, a copy of which is Annex 1 to this judgment.
10. It is worth noting the more significant features of the prescribed form before consideration of the authorities on the interpretation of section 20 and the regulations, and of the respects in which the particular notices actually given in the three cases under appeal deviated from the prescribed form.
(i) The notice must be given before the person proposing to take a tenancy agrees to the tenancy, it being expressly stated that the notice does not commit the tenant to take the tenancy.
(ii) Although no particular length of time between the giving of the notice and entering into the tenancy is specified, it is contemplated that the recipient of the notice will have an opportunity to take advice, including legal advice.
(iii) The notice contains only selective information about the proposed tenancy: the name of the proposed tenant, the name and address of the landlord, the address of the premises to be let and the start and end dates of the tenancy, which must be for a term certain of at least six months. Other important information about the terms of the proposed tenancy does not have to be stated in the notice. For example, the amount of the rent is not required to be stated. All that is said about the rent is that it is “the rent we have agreed”, coupled with an explanation of the right to apply to the rent assessment committee for a determination of the rent for the tenancy. So the notice is not intended either to serve as a record of the tenancy agreement or to be a substitute for such a tenancy agreement. It is contemplated by the notice that there will be a subsequent document.
(iv) The purpose of giving the notice is clearly stated in para 2, and is in accordance with section 20(2)(d) of the 1988 Act:
This notice is to tell you that your tenancy is to be an assured shorthold tenancy
Shorthold is a special kind of tenancy, as the paragraph goes on to explain: the tenant has security for the first six months of the fixed period agreed at the start of the tenancy, but, depending upon the terms of the tenancy, the landlord may have the right to repossession, if he wants, at the end of that six-month period.
(v) The regulations expressly contemplate that deviations from the prescribed form do not necessarily invalidate a notice. Errors and omissions are expressly catered for by the provision in regulation 2 that a reference to a form is a reference not only to the prescribed form but also includes a form “substantially to the same effect”.
Authorities
11. On all three appeals, counsel cited decisions of this court on section 20 and the regulations. They carefully analysed the facts of them, highlighting similarities and differences according to the use that they wished to make of them as binding precedents. The court was referred to Panayi v Roberts [1993] 2 EGLR 51; Andrews v Brewer (1997) 30 HLR 203; York v Casey [1998] 2 EGLR 25; Clickex Ltd v McCann [1999] 2 EGLR 63; and Manel v Memon [2000] 2 EGLR 40. In my judgment, however, a detailed analysis of each decision is not a profitable exercise; the question of whether a notice under section 20 is in the prescribed form or is in a form “substantially to the same effect”
12. There are two general statements steering the courts to a consistent approach:
(i) Purposive approach
In Manel , Nourse LJ posed these questions at p42B:
What, then, is the substance of a notice under section 20? Its essential purpose is to tell the proposed tenant that the tenancy is to be an assured shorthold tenancy, with the consequences specified in paras 2 and 3 of Form 7, in particular that “the landlord may have the right to repossession if he wants”. Although we are now familiar with the notion that an assured shorthold tenancy gives the tenant a very limited security of tenure, that would not have been the case in 1988.
Nourse LJ mentioned the importance of the presence on the form of the reference to advice, including legal advice, and the statement that the giving of the notice did not commit the tenant to take the tenancy.
(ii) The reasonable recipient
In a significant ruling in York, Peter Gibson LJ, with whom Bennett J agreed, held that the objective test that the House of Lords said, in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749*, applied to the validity of a contractual tenancy notice also applied to the validity of a section 20 notice. On that approach, a notice containing an error, such as a wrong date, may nevertheless be a valid notice if, “taking into account the relevant contextual scene”, the notice is quite clear to a reasonable person reading it, so that he would not be misled by it or left in any reasonable doubt as to its effect. As Lord Clyde said in Mannai, the standard of reference is that of the reasonable person “exercising his common sense in the context and in the circumstances of the particular case”.
* Editor’s note: Also reported at [1997] 1 EGLR 57
13. In applying the Mannai approach, it is therefore important to have well in mind the context of the evident purpose of the requirement of a notice in the prescribed form. If, notwithstanding errors or omissions, the substance of the notice is sufficiently clear to the reasonable person reading it, the notice is likely to serve the purpose identified by Nourse LJ. I highlight this point because the analysis of the authorities by counsel tended to a factual classification of the cases, treating the language of the judgments, which inevitably reflect the circumstances of the particular case, as laying legal rules, or sub-rules, that should then be applied so as to yield an inevitable result on the validity issue: for example, in the context of erroneous start and end dates, the arguments referred to cases of “obvious” or “evident” mistake, to be distinguished from cases of “perplexity” or “confusion”, and then sought to pigeon-hole cases according to their facts. There is a danger in taking this approach too far: it tends to harden fact into law, to elevate form over substance and to allow technicalities to obscure the substance of the statutory requirement to serve a section 20 notice.
Ravenseft appeal
14. In proceedings between Mrs Hall and her landlord, Ravenseft Properties Ltd (Ravenseft), Judge Cooke found that a notice dated 31 July 1996, and served by Ravenseft on Mrs Hall under section 20, was valid, being either in the prescribed form or in a form “substantially to the same effect”. The consequence of the decision upholding the validity of the notice was that Mrs Hall had only an assured shorthold tenancy, and Ravenseft was entitled to an order for possession, which the judge ordered to be given on 16 May 2001.
15. By a written agreement dated 27 August 1996, Ravenseft granted to Mrs Hall a tenancy of the first-floor flat in Norland Square Mansions, Holland Park Avenue, London W11. The lease was for a term commencing on 24 June 1996 and expiring on 23 June 2000 at a yearly rent of £3,140, subject to provisions for upward review. Clause 6 of the agreement provided:
The Tenancy hereby created is intended to be an assured short hold tenancy as defined in Section 20(1) of the Housing Act 1988 and the Lessee hereby acknowledges and confirms that a notice complying with the requirements of Section 20(2) of the Housing Act 1988 was served upon her by the Lessor before this Agreement was entered into.
16. The section 20 notice had been served by Ravenseft on Mrs Hall on 31 July 1996. A copy of it is in Annex 2 to this judgment.
17. It appears from the contemporaneous correspondence that Mrs Hall was to be granted an assured shorthold tenancy, on the above terms, on her simultaneously surrendering a fixed-term tenancy that had been granted to her former husband, and would expire in June 2000. A firm of solicitors, Gillian Radford & Co, acted on behalf of Mrs Hall. The section 20 notice was sent to her solicitor under cover of a letter of the same date from Ravenseft’s solicitor, Nabarro Nathanson. The letter stated:
We have now received revised instructions from our clients and enclose the engrossed assured shorthold tenancy for signature by your client and return to us. We also enclose notice of an assured shorthold tenancy and we would be grateful if you would forward this to your client.
18. It appears that the tenancy agreement originally signed by Mrs Hall was an old form of tenancy agreement and not the new agreement in line with revised instructions given by Ravenseft. The revised form of agreement had amended the rent review dates in the agreement. Nabarro Nathanson therefore wrote to Mrs Hall’s solicitor on 22 August 1996, asking it to forward the new tenancy agreement, which it had sent, duly signed by Mrs Hall. On 23 August Mrs Hall’s solicitor sent to Ravenseft’s solicitor the latest tenancy agreement signed by Mrs Hall. On 27 August Ravenseft’s solicitor acknowledged receipt and confirmed that the tenancy agreement was completed and dated 27 August 1996.
19. On 14 August 2000, shortly after the expiry of the term of the tenancy agreement, Ravenseft issued a summons for possession. In her defence, served on 8 November 2000, Mrs Hall pleaded that the section 20 notice was defective, as it was not in the prescribed form or in a form “substantially to the same effect”. In the particulars, it was alleged that the term of the tenancy agreement was incorrectly stated on the notice as commencing on 24 June 1996.
20. The judge recognised that the validity of the notice was critical to the outcome of the case. It was common ground before him, as it was before this court, that the tenancy could not begin before the date upon which the tenancy agreement was executed. As Stamp LJ said in Roberts v Church Commissioners for England [1972] 1 QB 278 at p285B-D:
It is well settled that the habendum in a lease only marks the duration of the tenant’s interest, and that the operation of the lease as a grant takes effect only from time of its delivery… The expression “the duration of the term” connotes the period in which the term is to continue, and it cannot start until it is created. Until then there is no tenancy and no interest in the tenant.
21. The judge rejected Mrs Hall’s submission that the date, 24 June 1996, inserted in the notice was the incorrect start date of the tenancy. He concluded:
In my judgment, far from there being an error in the notice, the notice is, in the rather particular circumstances of this case, actually right.
22. He gave these reasons for his conclusion:
In a sense the 24th June to 23rd June dates, and I think it is in an important sense, are actually correct dates because they identify to perfection, indeed, what the document actually says. If you lie the two documents [the notice and the tenancy agreement] alongside one another – for instance, you do it at the moment of execution and before the solicitor inserts that date in manuscript (as he always does), then you can see that the term to be granted, albeit it is a backdated term, and the term referred to in the notice are one of the same and it has to be this tenancy we are referring to and nothing else.
23. Mr John Male QC, on behalf of Ravenseft, supported the judge’s conclusion that the notice specified the correct start date. He contended that the term of the tenancy, and the “from” and “to” dates in the notice, corresponded exactly with those specified in the tenancy agreement, so that the notice bore the correct relationship with the lease. While accepting that the tenancy created by the agreement began on the date upon which the agreement was executed (27 August 1996), he reminded the court of the essential purpose of a section 20 notice. He pointed out that the prescribed form made it clear that the tenancy agreement, rather than the notice itself, defined the parties’ rights and obligations, and that the boxes on the notice are the wrong place to look for a definition of the tenancy. Their function is simply to identify the tenancy in relation to which the notice has been served. The notice in this case followed the prescribed form and included the prescribed information. It achieved its essential purpose as identified by Nourse LJ. He also submitted that the judge’s approach was in accordance with that taken by this court in the authorities.
24. I am unable to accept Mr Male’s submission that the start date is correctly stated in the notice. The date that should be inserted in the “from” box is the date of the tenancy and not the date from which the term to be created by it is calculated. The tenancy created by the tenancy agreement could not begin before the date of the execution of that agreement. What is required to be inserted is that date, not the proposed date of execution of the tenancy agreement or the proposed date of the commencement of the term to be created by the agreement. The correct date for insertion in the “from” box was accordingly 27 August 1996. It follows that 24 June 1996 is incorrect.
25. Mr Kim Lewison QC, for Mrs Hall, argued that it followed that the notice was invalid. He forcefully submitted that an important function of the notice is the giving of correct information to the proposed tenant. That included the correct start date of the tenancy. The identification of the guaranteed period of occupation is of great importance. In this case, the notice told Mrs Hall that she would be entitled to remain in the dwelling for at least six months starting on 24 June, when, in fact, she was entitled to remain for at least six months, starting on 28 August 1996. A notice with an incorrect start date is not “substantially to the same effect” as a notice with the correct date. He relied strongly upon the judgment of Mann LJ in Panayi at pp52F-53A and on the judgment of Peter Gibson LJ in York at p27J-K, where he referred to the appropriate test in these terms:
Accordingly,what the court must do is to see whether the error in the notice was obvious or evident and, second, whether, notwithstanding that error the notice read in its context is sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice.
26. In this case, Mr Lewison submitted, the error was not obvious to the reasonable recipient, who would be unaware of the rule of law that a tenancy takes effect only from the date of the grant. So it was not even possible to proceed to the second stage of applying the reasonable recipient test.
27. I agree with Mr Lewison that the facts of this case are close to those in Panayi, and that Mann LJ resolved in the tenant’s favour the narrow issue that a notice that gave the wrong date (in that case, the termination date) was not “substantially to the same effect” as one that gave the correct date, at least in a case where the mistake was not obvious. In the light of the later case of Manel, in which Nourse LJ identified the purpose of serving a notice, and of the approach to the construction of notices laid down by the House of Lords in Mannai, this court is, in my judgment, bound to take the broader approach to the issue of validity. I do not read the authorities as laying down a two-stage test that can be operated only when the error is “obvious”. The question is simply whether, notwithstanding any errors and omissions, the notice is “substantially to the same effect” in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy. Despite the error as to the start date, this notice did that. I would accept the contention of Mr Male that this notice was in a form “substantially to the same effect” as the prescribed form and is valid.
28. This appeal should be dismissed.
White appeal
29. In this case, the possession proceedings by the landlord, Mr Peter White, were dismissed by Mr Recorder Hetherington on the ground that the notice given to the tenant, Mr David Chubb, on 24 September 1993 was invalid. A copy of the notice is at Annex 3 to this judgment.
30. The notice was in fact given by Mr Kelly, from whom Mr White acquired the premises, flat 4 at 8 Upper Belgrave Road, Clifton, Bristol, in 1995. The notice was given prior to Mr Chubb entering into a written tenancy agreement with Mr Kelly dated 29 September 1993 for an assured shorthold tenancy of the flat for a term of six months, commencing on 1 October 1993, at a monthly rent of £240. The error in the notice was an incorrect end date of 1 May 1994, when it should have been 1 April 1994. The mistake occurred as a result of a “genuine counting error” by Mr Kelly. Mr Chubb did not realise Mr Kelly’s error. He was not misled by the error, as Mr Kelly had explained to him, and he had understood perfectly well, that it would be an assured shorthold tenancy for six months.
31. The recorder rejected the landlord’s contention that the error fell into the “obvious and evident” category of case considered in the authorities. He held that, on the authorities:
the claimant does not get to the contextual saving unless he first satisfies me that the error was obvious or evident… This error in my judgment is quite different. There might lurk in the mind of the recipient some genuine perplexity as to why a period longer than six months had been selected for the notice. Of course it is right that he might well have assumed, had he adverted to it and thought about it, that it was simply a counting mistake; and of course the defendant was not in fact misled in this case: but the first of those matters is not the test, and the second is irrelevant.
Rightly or wrongly, the law, through Act of Parliament, then provided that strict formalities had to be observed when drafting these notices. In my judgment, and in the light of the authorities to which I have referred, where a perplexity existed in the terms of the notice, and any concurrent explanation by the landlord went to matters relating to the tenancy as a whole and not specifically to the notice as such, the defect in the notice is not cured, and it was and is an invalid notice.
32. The recorder’s overall conclusion, reached with “considerable reluctance”, was that he had no alternative “in the light of the guidance to be derived from the authorities”.
33. Mr Paul Morgan QC, for Mr Chubb, contended that the recorder’s decision was right for the reasons given by him. He advanced very similar arguments to those deployed by Mr Lewison on the Ravenseft appeal, which is not surprising, as Mr Lewison was originally instructed in the appeal, but was unable to appear at the hearing of the White appeal in Exeter. Mr Morgan emphasised that whether the defect in the notice had caused actual prejudice to Mr Chubb was immaterial, as was Mr Chubb’s subjective understanding of the notice. The validity of the notice had to be objectively judged. On that approach, the notice is predicated on the basis that the dates in question are correctly filled in. This notice was invalid, as it was not in the correct form and did not fulfil the purpose for which it had to be served: it did not correctly inform the tenant of the legal consequences of taking an assured shorthold tenancy. It overstated the tenant’s security of tenure. A tenant who thinks that he has one more month’s security than he in fact has is not given the substance of the information required by the prescribed form.
34. Mr Morgan also submitted that the authorities required the court to take the two-stage approach taken by the recorder to the issue of validity. First, the court must see whether the error in the notice is obvious or evident. Only if it is does the court proceed to the second stage of deciding whether the notice, read in context, is sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice. On the facts of this case, the error was not an obvious one. It was not obviously absurd or self-contradictory, as in the case of a tenancy given dates showing that it ends before it begins: see Andrews and York.
35. In my judgment, the recorder took too narrow a view on the legal effect of the authorities on the interpretation of section 20 and the regulations. There is, in substance, only one statutory question: is the notice in the prescribed form, or in a form “substantially to the same effect”? In answering that question, it is necessary to apply to the notice the approach to construction laid down by the House of Lords in Mannai, in the contextual setting of the statutory objective in requiring the giving of a notice in the prescribed form. There is no statutory or common law doctrine of “obvious mistake”, or any requirement to apply a two-stage test. In some of the authorities, such as York, this court has found it helpful, on the particular facts before it, to analyse the case in that way, but without putting into a legalistic straitjacket what is, and should remain, predominantly a question of fact and degree in each case.
36. In this case, the notice was in a form “substantially to the same effect” as the prescribed notice. I would therefore allow the appeal. The mistaken end date of 1 May 1994, instead of 1 April 1994, even if not obvious to the reasonable recipient, did not prevent the notice, when read by the reasonable reader, from fulfilling the function that it was meant to perform. He would know from reading the notice the premises to which the proposed tenancy related and the name and address of the landlord. He would also know that he had at least six months’ security, that the notice did not commit him to take the tenancy and that he could seek advice before he entered into the tenancy.
Kasseer appeal
37. In this case, Judge Winstanley made an order for possession on 17 July 2001, having held that the section 20 notice given by the landlord, Ms Carmela Freeman, to the tenant, Mr Fawzi Kasseer, on 23 September 1994, prior to a tenancy agreement for the letting of 73 Moira Court, Trinity Crescent, London SW17, for a year from 1 October 1994, was in a form substantially to the same effect as the prescribed form and therefore valid. A copy of the notice is in Annex 4 to this judgment.
38. It appears from a comparison of the notice given with the prescribed notice in Annex 1 that there are two errors relied upon by the tenant as invalidating the notice. First, the language of para 3 of the notice given is different, in that the prescribed notice refers to the rent assessment committee’s consideration of properties let on assured tenancies, whereas the notice given erroneously refers to consideration of properties let on assured shorthold tenancies. The effect of the error is to state the committee’s power of investigation in more circumscribed terms than in fact is the case.
39. Second, the prescribed form contains a special note for existing tenants. The special note for existing tenants in the notice given misstates the law and misinforms the tenant about his rights. It wrongly states that a tenant under an assured tenancy who has an assured shorthold tenancy in other accommodation will almost certainly have less security of tenure. It does not state that a new tenancy granted to a protected or statutory tenant can still be a protected tenancy; it does not state that special rules apply to protected shorthold tenants; and it does not say that an assured tenant cannot be granted an assured tenancy of the same or other accommodation by the same landlord.
40. It was submitted on behalf of the tenant that the defects would be calculated to deter a tenant from applying to the rent assessment committee to review the agreed rent, and that a notice that misstates the tenant’s rights cannot be said to have the same, or substantially the same, effect as a notice that correctly states that right.
41. The judge rejected the tenant’s submissions, holding that para 3 was substantially to the same effect as Form 7, as it correctly informed the tenant of his right to apply to the rent assessment committee for the determination of a reasonable rent, even though it did not correctly summarise the way in which the committee would determine the rent. As for the errors in the “Special note for existing tenants”, they did not prevent the notice, considered as a whole, from having substantially the same effect as Form 7. The substance of the message that the tenant was getting only an assured shorthold tenancy, and that the landlord might have the right to repossess the flat, was:
not diluted or obscured by a drafting error in a part of the notice that for all practical purposes was irrelevant to the Defendant and would have been taken by him to be irrelevant.
42. Mr Paul Morgan QC, for the tenant, submitted that the defects were so serious that it could not be said that the notice was either in the prescribed form or in a form “substantially to the same effect”. His submissions were similar to those advanced by him on the White appeal. He contended that, on a comparison of the prescribed form and the notice, it appeared that the notice inaccurately stated the law in a misleading way. What was given was misinformation in place of the accurate information contained in the prescribed form. The absence of actual prejudice to the recipient of the notice was irrelevant.
43. I am unable to accept these arguments, which, as I have already explained, are based upon an unduly restrictive approach to the question of the conformity of the notice to the prescribed form. The judge was right to take the broader approach set out by him. The notice, despite its errors and omissions, conveyed to Mr Chubb the substance of the prescribed form and satisfied the statutory objective. I agree with Mr Timothy Fancourt, who appeared for the landlord, that when the notice is considered in its contextual setting, neither the literal words of para 3 and of the “Special note for existing tenants”, nor the precise information conveyed by them, form part of the substance of Form 7.
44. I would therefore dismiss this appeal.
Agreeing, TUCKEY LJ said:
45. I agree that the White appeal should be allowed and the Kasseer appeal should be dismissed.
46. In the White appeal, Mummery LJ reaches this result by asking the question of whether the notice was in a form “substantially to the same effect” as the prescribed form, having regard to its statutory objective: paras 35 and 36. The Master of the Rolls reaches this result by asking whether the tenant should reasonably have concluded that the notice that he had received related to the tenancy into which he had entered: para 56. I think it is likely that the result will be the same whichever question one asks, as this case shows. But if I have to choose, I think I prefer Mummery LJ’s question, since it mirrors the language of the statute.
47. There is no difference of approach between Mummery LJ and the Master of the Rolls.
Also agreeing, LORD PHILLIPS MRsaid:
48. I also agree with the result proposed by Mummery LJ in each of the appeals over which I have presided. These decisions underline the correctness of that reached in the Ravenseft appeal.
White appeal
49. My reasons for agreeing that this appeal should be allowed are consonant with those of Mummery LJ, but go several strides further down the path that he treads. They differ in approach from that adopted in previous decisions on the significance of discrepancies between particulars in section 20 notices and subsequent tenancies. My reasons are also at odds with the submissions made by Mr Morgan, on behalf of the tenant, Mr Chubb, in this appeal. These reasons are as follows:
50. Under section 20 of the 1988 Act, a tenancy will qualify as an assured shorthold tenancy only if a notice in respect of it has been given before the tenancy is concluded. The notice thus necessarily relates, at the time that it is given, to a proposed tenancy that is to be concluded in the future.
51. Section 20(2)(a) requires the notice to be in such form as may be prescribed. Section 20(2)(d) requires the form to state that the tenancy to which it relates is to be a shorthold tenancy. Thus, it is necessary for the notice to identify the prospective tenancy to which it relates.
52. Regulation 2 of the 1988 regulations prescribes that the form used must be the one that is scheduled to the regulations or a form “substantially to the same effect”.
53. The relevant form in the Schedule to the regulations is that set out as Annex 1 to the judgment of Mummery LJ. The upper half of the form contains blank spaces for insertion of the name of the tenant(s) and for details of the proposed tenancy. Details inserted in these blank spaces
54.More particularly, the object of inserting the particulars of the tenancy in the prescribed form is not to record the terms of the tenancy. As Mummery LJ has pointed out, the form does not provide for the insertion of all the relevant terms. The form anticipates that a tenancy agreement will be concluded. It is in that agreement that all the relevant terms of the tenancy fall to be recorded.
55. The object of the notice is first and foremost to give to the proposed tenant the information that is set out in the bottom half of the prescribed form. The information tells the tenant of important rights that, respectively, both he and the landlord will enjoy under the proposed tenancy. The prescribed form also includes some useful advice to the proposed tenant in the top part of the form.
56. If a tenancy is concluded after a section 20 notice has been given that describes the tenancy in terms that differ from those of the tenancy subsequently concluded, an issue may arise as to whether the tenancy is that to which the notice relates. This is the question that arises in this appeal. The test to be applied when answering that question is whether, having regard to the particulars of the tenancy in the notice, and to all the relevant surrounding circumstances, the tenant should reasonably have concluded, when he entered into the tenancy, that the notice that he had received related to it.
57. Applying that test, there can be no doubt that the written tenancy into which Mr Chubb entered on 29 September 1993 was that to which the notice given to him on 24 September 1993 related. The discrepancy between the end date of the tenancy described in the notice and the end date of the actual tenancy could not reasonably have led Mr Chubb to conclude that the information that he had been given by the notice did not relate to the tenancy into which he had entered.
Kasseer appeal
58. In contrast to the White appeal, the Kasseer appeal raises the issue of whether the section 20 notice was in a form “substantially to the same effect” as the prescribed form. For the reasons given by Mummery LJ, I share his conclusion that it was. It follows that this appeal will be dismissed.
First and third appeals dismissed; second appeal allowed.
