Lease – Expiry of term – Parties agreeing to exclude section 24 to 28 of Landlord and Tenant Act 1954 – Tenant having no right to continue tenancy after term expired – Landlord serving notice giving tenant warning of consequences – Tenant making statutory declaration where simple declaration sufficient – Whether agreement void because declaration not meeting statutory requirements – Claim dismissed
The claimant tenant and the defendant landlord intended to make a joint application to exclude sections 24 to 28 of the Landlord and Tenant Act 1954 in respect of two business tenancies. As a result, the claimant would have no right to continue the tenancies after the expiry of the term. Consequently, pursuant to section 38A of the 1954 Act, the defendant was required to give the claimant a “health warning” by serving a notice specifying that the tenant would have no right to stay in the premises after the leases had expired.
If the notice was received at least 14 days before the tenant was to commit to the lease, she needed to sign a simple declaration that she accepted the consequences before signing the lease. If the tenant did not receive at least 14 days’ notice, she had to sign a statutory declaration in the form set out in Schedule 2 to the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003.
In the present case, the notice was served more than 14 days before the lease was entered into and a simple declaration would therefore have been sufficient. However, the tenant signed a statutory declaration in the presence of a solicitor, which did not fit the precise scheme set out in Schedule 2. Had a lease been granted or any contract for a lease been made less than 14 days after the service of the notice, and a simple declaration made, it was clear that an agreement to exclude sections 24 to 28 would have been void by virtue of section 38A.
The question in this case was whether the converse applied where a statutory declaration had been made when a simple declaration would have sufficed.
Held: The claim was dismissed.
Sections 24 to 28 of the 1954 Act had been validly excluded within the meaning of section 38A.
The declaration was perfectly proper and went further than was necessary in that it had been made before a solicitor who was empowered to administer oaths. Anyone looking at the declaration could see that the more stringent measures that might have been taken to alert a tenant to its situation had been complied with, even if it was unnecessary to do so.
Per curiam: The claimant’s argument was not advanced by her reference to some precise and technical matters of in landlord and tenant legislation, for example, notices under section 21 of the Housing Act 1988 having to specify a date at the end of a period of the tenancy. Such technicalities were unnecessary and did not exist in the case of terminating tenancies under the 1954 Act.
Per curiam: When the landlord’s solicitor sent the documentation to the tenant, it might not have known whether the tenant would take a tenancy in less than 14 days and could not be blamed for sending the greater rather than the lesser form. Had the tenant’s solicitor wished to avoid the expense of making a statutory declaration, it was open to him to say: “Would you please send us a simple declaration because there is no way in which my client is going to exchange contracts or take a tenancy in less than 14 days and we wish to avoid the expense of a statutory declaration.”
Philip Sapsford QC and Eram Merali (instructed by S Merali & Co) appeared for the claimant; Alexander Winter (instructed by Hollingworth Bissell) appeared for the defendant.
Eileen O’Grady, barrister
