Housing Act 1988 — Six-month agreement signed on first day of six-month period — Whether term of six months — Whether notice given on same date given before agreement
On the morning
of December 18 1990 the appellant tenant was first given a notice in the
prescribed form under section 20(2) of the Housing Act 1988 and then entered
into a tenancy agreement of a dwelling for a term of six months from the
commencement date of December 18 1990. In the afternoon the tenant went into
possession. The appellant appealed the decision in the county court that he
held the premises by an assured shorthold tenancy, contending that the term
granted was, by a few hours, less than the six months required of an assured
shorthold tenancy and that a section 20 notice given on the same date as the
grant of an agreement was not given before the tenancy which commenced on the
same date.
is paid to fractions of a day, in the sense that the period is regarded as
complete although it is short to the extent of a fraction of a day. Tenancy
agreements deal with years, months and weeks and sometimes days, but not with
hours. The agreement was therefore for a period of six months. It was a pure
question of fact whether the section 20 notice was given before the grant of
the tenancy; the trial judge was entitled to find on the evidence before him
that the notice had been given before the tenancy agreement was signed.
The following
case is referred to in this report.
Roberts
v Church Commissioners for England [1972] 1
QB 278; [1971] 3 WLR 566; [1971] 3 All ER 703, CA
This was an
appeal by the defendant, Wayne McCarthy, from a decision of Judge Thompson QC
allowing a claim for possession brought by the plaintiffs, Trevor John Bedding
and others of a dwelling-house.
Christopher
Naish (instructed by Stevens & Scown, of St Austell) appeared for the
appellant; Christopher Thomas QC and James Haywood (instructed by John Rabey
& Co, of Truro) represented the respondents.
Giving his
judgment of the court at the invitation of Butler-Sloss LJ, NOLAN LJ
said: On December 18 1990 the plaintiffs, as landlords, and the defendant, as
tenant, entered into an agreement for the tenancy of 21 Beach Road, St Austell,
Cornwall. On July 23 1993, Judge Thompson held that the agreement gave rise to
an assured shorthold tenancy, as defined by section 20 of the Housing Act 1988.
The effect of that decision was that on termination of the tenancy the
landlords were entitled to recover possession, subject to the conditions laid
down by section 21 of the Act. The judge ordered possession within 28 days and
refused to grant a stay. The defendant now appeals against that decision.
Section 20 of
the Housing Act 1988, so far as relevant, reads as follows:
(1) Subject to subsection (3) below, 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 from 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) the assured tenancy to which it relates is
to be a shorthold tenancy.
Subsection (3)
is not relevant for present purposes. The term ‘assured tenancy’ is defined by
section 1 of the Act. There is no need for us to explore section 1 because it
is common ground that the tenancy in the present case was an assured tenancy as
defined. It is also common ground between the parties that, as indeed appears
from the documents themselves, there was no power for the landlords to
determine the tenancy; the notice was in the prescribed form; the notice was
served by the prospective landlords on the prospective tenant and the notice
stated that the tenancy would be a shorthold tenancy. The issue is whether the
tenancy was for a term of not less than six months and whether the notice was
served before that tenancy was entered into.
The agreement
itself describes the term as six months from the commencement date, that is to
say, from December 18 1990. It is agreed, however, as a matter of fact, that
the events of that day consisted in the morning of the service of the
prescribed notice by the landlords on the tenant and the return of that notice
duly signed by the tenant and then, still in the morning, the signing of the
tenancy agreement by all parties. Then, in the afternoon, the defendant
actually took possession of the property.
What is argued
by the defendant is that the tenancy can be described as one for not less than
six months only if it included the whole of the period from the beginning of
December 18 1990 to the end of June 17 1991. But in fact, submits Mr
Christopher Naish for the defendant, it was for six months less the hours
before the signature of the agreement during the morning of December 18.
Mr Naish, who
has not only presented an extremely helpful and clear skeleton argument but
also argued his case with conciseness and clarity, invites us to bear in mind
that this Act deprived many tenancies of the sort of protection which they
would have otherwise have enjoyed and therefore should be strictly construed. He
refers us in support of his initial proposition to the case of Roberts v
Church Commissioners for England [1971] 3 WLR 566 and relies in
particular on what is said by Russell LJ in the course
1952 the landlords granted a lease for a term described as 21 1/4 years from
March 25 1950. The court held that the lease did not create a long tenancy as
defined since the tenancy granted could not take effect before the date of
execution and delivery of the lease — that is to say, could not take effect
until October 1952.
In the course
of his judgment at p569F of the report, Russell LJ said:
In the course
of the argument I ventured to suggest a test, which is that to fulfil the
definition a tenant must at some point of time be or have been in a position to
say that, subject to options to determine, rights of re-entry and so forth, he
is entitled to remain tenant for the next 21, whether at law or in equity.
Now, said Mr
Naish, applying that to the circumstances of the present case, consider the
position of the defendant in the early hours of December 18 1990. Could he, at
that point in time, say that he was entitled to a tenancy for a term of not
less than six months? The answer was no,
he was not entitled to any tenancy at all. Conversely, towards the end of that
day, after the tenancy had been entered into, could it be said that he could
remain as a tenant for a period of six months measured from the afternoon? Again Mr Naish submits the answer is no.
To that
proposition, the landlords in their skeleton argument referred us to Halsbury’s
Laws of England, 4th ed, vol 45, para 1143. In that paragraph we find
quoted what is described as the general rule relating to fractions of a day and
I need read only the first two sentences:
In computing
a period of time, at any rate when counted in years or months, no regard is, as
a general rule, paid to fractions of a day, in the sense that the period is
regarded as complete although it is short to the extent of a fraction of a day.
In cases in which the day of the date of an instrument of lease is included in
the term it is immaterial that the tenant’s enjoyment cannot begin with the
beginning of that day.
This
proposition, which is supported by copious and ancient authority in the notes
to the text of Halsbury’s, appears to me to dispose completely of the
initial argument put forward by the defendant. It is, of course, a commonplace
that tenancy agreements and leases deal with years, months and weeks and sometimes
days, but not with hours, minutes or seconds, so the lease in the present case
is described as a tenancy agreement for a period of six months. That is, in my
judgment, perfectly consistent with the description of the proposed tenancy in
the notice as one running from December 18 1990 to June 17 1991. That is
precisely how it would be construed and understood in the ordinary law of
landlord and tenant and I can see no reason why some different standard or
approach should be adopted for the purposes of the Housing Act 1988. The
remarks of Russell LJ were directed solely to the common form of tenancy
agreement dealing with, in that case, years and months. They were not directed
or supportive of the proposition that the term of the tenancy should be measured
by reference for something less than a whole day.
Mr Naish says
if that is so and if it be the case that the tenancy agreement signed during
the morning of December 18 dates back to the beginning of that day, then the
landlords fail to satisfy the condition specified in section 20(2)(b), namely
the condition that the notice must be served before the tenancy is entered
into. This seems to me to confuse the time when the tenancy is entered into
with the time when, as a matter of law, it is deemed to commence. It would seem
to me clear that the tenancy was entered into when the agreement was signed. It
is not the less clear that it was entered into at that point in time because it
was deemed to commence some hours earlier.
We come to the
question which appears to me to be a pure question of fact: was the notice
served before the tenancy was entered into?
Mr Naish says it is not consistent for that purpose to look at the
fractions of a day. If you are going to ignore fractions of a day, you must do
so consistently. But again, I think that is wrong. In para 1144 of Halsbury’s
Laws it is stated:
The general
rule that fractions of a day are to be disregarded does not apply where the
object of a statute would be defeated unless the precise hour of an occurrence
were noted, or where conflicting claims depend on the question which of two
events was first in order of time, for then the particular hour when the events
occurred may become material.
It seems to me
the question posed by section 20(2)(b) falls within that category. It is a pure
question of fact whether the notice was or was not served before the tenancy
was entered into and the agreed statement of facts on its natural reading
establishes that it was served before the tenancy was entered into. In terms, the
agreed statement of facts states, ‘The defendant signed document 5’, that is
the notice, ‘and returned it, and then all parties signed document 4’, that is
the tenancy agreement. Mr Naish argued that these should be regarded
essentially as contemporaneous events. He submitted that on their most
favourable reading there can only have been a short time between the two events
and it is not therefore to be assumed that the purpose of the Act was fulfilled
because this, he submitted, must contemplate a reasonable period of time being
given to the proposed tenant to study the document and determine what it is
that he is entering into. The difficulty here is that the Act says nothing to
suggest that there must be any particular minimum time.
It is, as it
seems to me, for the judge trying the matter in the event of any dispute to
decide whether, on the sensible reading of the Act, the service of the notice
did precede the entering into of the assured tenancy. Here, whatever doubts
there may have been as a result of the somewhat terse phraseology of the agreed
statement of facts, it must be taken to have been resolved by the judge who
heard evidence on this point. He was quite satisfied that these documents were
not signed contemporaneously, but that one did indeed precede of the other.
The notice is
no doubt very deliberately expressed in simple and clear terms, which any
normal layman could comprehend at first reading without difficulty so even if,
as seems highly unlikely, the defendant tenant had no idea what he was going to
be asked to sign before the documents were actually executed that morning. I
see no reason whatever to suppose that the learned judge was in error in
finding that the condition specified in section 20(2)(b) was satisfied.
In sum, in my
judgment, the notice, as a matter of fact, was served before the tenancy was
entered into. The tenancy, once entered into, was for a term certainly not less
than six months — that is from the first moment of December 18 1990 to the last
moment of June 17 1991 and accordingly I conclude that an assured shorthold
tenancy was created.
At the outset
of these proceedings, Mr Christopher Thomas QC, for the plaintiffs, submitted
that in any event we should not proceed to deal with the appeal because there
had been no appeal by the tenant against the judge’s refusal to grant a stay of
execution beyond the 28-day period. Indeed, the tenant had complied with the
order for possession by leaving well within the 28 days and before entering a
notice of appeal. I would prefer to express no view upon that matter. It was
argued by Mr Naish, but without an opportunity to refer to the authorities; I
think it may well present a question of real difficulty. In the circumstances
there is no need for a decision to be reached upon it and therefore I leave it
open. I would, however, for the reasons given, for my part dismiss this appeal.
BUTLER-SLOSS
LJ agreed and did not add anything.
Appeal
dismissed.
