Housing Act 1988 – Protected tenancy – Possession proceedings – Consent order – Appellant agreeing to give up existing tenancy and vacate for a day after which new tenancy to be granted – No formal grant of new tenancy by respondent landlord – Whether appellant having protected tenancy under section 34 of Housing Act 1988 – Whether protected or statutory tenant “immediately before the tenancy was granted” within section 34(1)(b) – Whether agreement for tenancy amounting to “tenancy” for that purpose – Appeal dismissed
The appellant occupied a property let to him by the respondent’s predecessor in title. In 2000, the respondent brought possession proceedings against the appellant, who defended the claim on the basis, disputed by the respondent, that his tenancy enjoyed the full protection of the Rent Act 1977. The proceedings were compromised by an agreement embodied in a consent order, which provided that, inter alia: (i) the appellant’s existing tenancy would be determined; (ii) the appellant would vacate the property for 24 hours and hand back the keys; and (iii) the respondent would, on the following day, grant a new assured shorthold tenancy to the appellant for a term of five years on specified terms. The order was signed and delivered as a deed. The appellant vacated for 24 hours as agreed, and thereafter continued in occupation as before, but no formal grant of the new tenancy was made.
In 2006, the respondent sought possession upon the expiry of the five-year term provided for in the agreement. When the appellant refused to give up possession, claiming that he was still entitled to the full protection of the 1977 Act, the respondent brought further possession proceedings. On a trial of preliminary issues, it was held that the appellant could not have a protected tenancy within the meaning of the Housing Act 1988 since he had not been a protected or statutory tenant “immediately before the tenancy was granted” within section 34(1)(b) of that Act, having surrendered his previous tenancy.
The appellant appealed. He contended that: (i) he had still been a protected tenant when the parties entered into the consent order agreement under which his new right to occupy had been granted; (ii) that agreement amounted to a “tenancy” within section 34(1)(b), either because of the provision in section 45(1) that the word “tenancy” included a legally enforceable agreement for a tenancy except where the context otherwise required or because the agreement, being embodied in a deed and containing all the terms of the tenancy in one document, was itself capable of taking effect as a tenancy; and (iii) accordingly, there had been no intervening period between the expiry of his former tenancy and the creation of his new right to occupy under the agreement. In addition, he relied upon Article 8 of the European Convention on Human Rights.
Held: The appeal was dismissed.
(1) The purpose of section 34(1)(b) was to prevent those who were entitled to the full protection of the 1977 Act from losing that protection as a result of being persuaded to enter into a new tenancy of the same property However, there was nothing to prevent a contractual or statutory tenant from choosing to surrender his tenancy, and with it his protection, if he perceived it to be advantageous: Dibbs v Campbell [1988] 2 EGLR 122; [1988] 30 EG 49 and Bolnore Properties Ltd v Cobb (1996) 29 HLR 202 applied. That could be achieved by the tenant surrendering possession for a short time before the new tenancy was granted, which appeared to be what the appellant and respondent had had in mind; in return for questionable protection under the 1977 Act, the appellant had agreed to accept the certainty of an assured shorthold tenancy for a term of five years.
(2) Properly construed, a “tenancy” in section 34(1)(b) did not include an agreement for a tenancy since the context “otherwise required” within the meaning of section 45(1). A clear distinction was drawn between a tenancy and a contract for a tenancy. Further, the agreement embodied in the consent order could not be said to have taken effect as an immediate grant of a lease, even though it contained all the necessary ingredients, because the language of the document as a whole showed that the parties intended it to take effect as what it purported to be, namely an agreement for a tenancy to be granted in the future rather than a present grant: Walsh v Lonsdale (1882) LR 21 Ch D 9 distinguished.
(3) The effect of the above was that the appellant had surrendered his existing tenancy by the symbolic act of handing back the keys. The consent order agreement provided the legal basis upon which a new relationship of landlord and tenant had commenced the following day. That short interval was sufficient to prevent the appellant from taking advantage of section 34(1)(b). The expression “immediately before the tenancy was granted” should be given its ordinary meaning, as being restricted to those cases in which the new tenancy took effect immediately on the expiry of the old. It referred to the time at which the tenancy became effective and the tenant became entitled to possession under it.
(4) Moreover, section 34(1)(b) did not, when interpreted in accordance with the natural meaning of the words used, give rise to an infringement of the tenant’s right to respect for home: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 applied.
David Watkinson (instructed by Cartridges) appeared for the appellant; Andrew Arden QC and Iain Colville (instructed by Michelmores LLP) appeared for the respondent.
Sally Dobson, barrister
