Housing Act 1988 – Assured tenancy – Defendant occupying room in claimant landlord’s house under oral tenancy – Statutory tenancy arising when claimant ceasing to be resident landlord in 2007 – Declaration that assured shorthold tenancy arising not assured tenancy – Whether assured shorthold tenancy arising by virtue of section 19A of 1988 Act – Whether section 19A applying where contractual tenancy predating coming into force of section 96 of Housing Act 1996 – Permission to appeal refused
The claimant owned the freehold of a house of which she occupied the ground floor while letting out other rooms. In January 1997, she let a first-floor room, with the shared use of kitchen and bathroom, to the defendant on an oral tenancy. The claimant moved out of the property in January 2007. In May 2007, she served a notice to quit on the defendant and brought a claim for possession, in which she contended that she qualified as a “resident landlord”, within the meaning of para 10 of Schedule I to the Housing Act 1988, such that the defendant’s tenancy enjoyed no statutory protection.
The district judge dismissed the possession claim on the ground that the claimant had left the premises without intending to return and was not a resident landlord. At the invitation of the parties, he also made a declaration as to the status of the defendant’s tenancy. He declared, in favour of the claimant, that the defendant held an assured shorthold tenancy not an assured tenancy.
The defendant applied for permission to appeal. He contended that the effect of the claimant leaving the property was to remove the obstacle to an assured tenancy, such that he had at that point become an assured tenant. He contended that section 19A of the 1988 Act, which provided that assured tenancies entered into after the day on which section 96 of the Housing Act 1996 came into force (in February 1997) would be assured shorthold tenancies, did not affect his tenancy since he had already held it at that date. In the alternative, he argued that if section 19A were relevant, his assured tenancy fell within the proviso to that section in respect of assured tenancies entered into pursuant to a contract made before the relevant date.
Further proceedings brought by the claimant, seeking possession on the ground of a valid termination of the shorthold tenancy by the service of a notice under section 21(4)(a) of the 1988 Act, were stayed pending the outcome of the defendant’s application.
Held: The application was refused.
(1) The purpose of the 1996 Act was to replace assured tenancies with assured shorthold tenancies. Although earlier assured tenancies that predated the 1996 Act remained, the defendant did not hold an earlier assured tenancy since he had not held any form of assured tenancy before the claimant left the property. He could not backdate his statutory tenancy to January 1997 as though it had lain dormant and been restored on the claimant’s departure. The words “entered into” in section 19A covered the creation of a statutory tenancy by operation of law or by implied surrender and regrant. Since the defendant’s statutory tenancy had arisen in that way only after February 1997, when the claimant left the property, it could be nothing other than an assured shorthold tenancy.
(2) Further, the proviso to section 19A of the 1988 Act covered cases that straddled the coming into force of the 1996 Act, where a contract was in place before February 1997 and a tenancy commencing thereafter by virtue of that contract. It did not apply in the instant case. Accordingly, an appeal was unlikely to succeed; nor was there any other compelling reason why permission to appeal should be given.
Laura Collignon (instructed by AEP Zaleski MA) appeared for the claimant; Marina Sergides (instructed by the Hammersmith and Fulham Law Centre) appeared for the defendant.
Sally Dobson, barrister
