1. This is an application by Mr Olechno, who was the Defendant in the court below, for permission to appeal from an order of District Judge Nicholson made on 4/4/08.
2. It is provided by an order of Her Honour Judge Knowles, made on 24/6/08 that, if permission is granted, I should go on to hear the appeal.
3. The Respondent is the freehold owner of a house at 25 Poplar Grove, London W6. At a time when she was herself living in the house, she let out rooms to various tenants, including the Applicant. She occupied the ground floor.
4. It is common ground that, on or about 10/1/97, the Applicant acquired an oral contractual tenancy, whereby he was entitled to occupy a room on the first floor of the house, with shared kitchen and bathroom.
5. The Respondent gave the Applicant Notice to Quit on or about 5/5/07. A claim for possession was issued on 21/7/07. The Respondent alleged that the Applicant had no statutory protection, because she was a “resident landlord” within the meaning of Schedule I, para 10, Housing Act 1988.
6. The issue at the trial was whether the Respondent had left the premises, and whether she intended to return. The District Judge made clear findings that she did leave the premises, not intending to return, and that she was not a resident landlord. Accordingly, he dismissed the claim for possession. There is no appeal against that part of his judgment.
7. However, there was an issue between the parties as to whether, as a matter of law, the Applicant was an assured shorthold tenant (as the Respondent claimed) or an assured tenant (as the Applicant claimed). Both counsel asked the District Judge to grant a declaration as to the status of the Applicant’s tenancy. The District Judge acceded to the request, heard argument and made a declaration, in favour of the Respondent, that the Applicant was an assured shorthold tenant.
8. The Respondent had previously served on the Applicant a notice under s.21(4)(a) Housing Act 1988. After the hearing before the District Judge, separate proceedings were begun against the Applicant, based on that notice. Those proceedings have been stayed, pending the outcome of the appeal.
9. Whilst I appreciate the commendable wish of all concerned to save costs, I have considerable reservations about the course advocated by counsel and accepted by the District Judge. No claim for a declaration had been pleaded. The proceedings based on the s.21 notice were not before the District Judge. The point which he was asked to decide did not, therefore, strictly speaking, arise.
10. Nevertheless, the District Judge did make the declaration. The Applicant seeks permission to appeal against it. Both parties have addressed substantial argument on it. Understandably, the Applicant has not sought to argue that there was any procedural irregularity. It seems to me that I must regard the status of the Applicant’s tenancy as being the issue at the heart of the Application.
11. The District Judge refused permission to appeal. He was not satisfied that there was a reasonable prospect of success on appeal or other compelling reason to give permission. He was not satisfied that he had misdirected himself, despite the fact that there was no authority on the point which he had decided.
12. Section 1 of the Housing Act 1988 provides that:
“(1) A tenancy under which a dwelling house is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as-
(a) the tenant or, as the case may be, each of the joint tenants is an individual; and
(b) the tenant, or as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and
(c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.
(2) Subject to subsection (3) below, if and so long as a tenancy falls within any paragraph in Part 1 of Schedule 1 to this Act, it cannot be an assured tenancy…”
Subsection (3) has no application in the present case.
13. Schedule 1 lists a number of kinds of tenancy which cannot be assured tenancies. These include a tenancy where there is a “resident landlord” as defined in paragraph 10. It is common ground that the Respondent was a resident landlord at the commencement of the Applicant’s tenancy and remained so until she moved out on or about 27th January 2007. Nothing turns on the application or interpretation of paragraph 10. I need not set it out.
14. For present purposes, the crucial section is section 19A Housing Act 1988, which provides as follows:
“An assured tenancy which-
is entered into on or after the day on which section 96 of the Housing Act 1996 comes into force (otherwise than pursuant to a contract made before that day), or
(a) comes into being by virtue of section 5 above on the coming to an end of an assured tenancy within paragraph (a) above,
is an assured shorthold tenancy unless it falls within any paragraph in Schedule 2A to this Act.”
15. It is common ground that Schedule 2A has no application in the present case and that s.96 of the Housing Act 1996 came into force on 28th February 1997.
16. There are three crucial dates which need to be borne in mind: 10/1/97 (when the Applicant acquired his contractual tenancy); 28/2/97 (when the 1996 Act came into force); and 27/1/07 (when the Respondent left the premises and thereby ceased to be a resident landlord).
17. Counsel for the Applicant stressed that her client had entered into a contractual relationship, which had not been terminated, and which had endured throughout the relevant period. She submitted that the effect of the Respondent leaving was to remove the obstacle to an assured tenancy which had previously been provided by Schedule 1 paragraph 10. She contended that, in consequence, the Applicant, who fulfilled the requirements of s.1(1)(a) and (b) Housing Act 1988, became an assured tenant.
18. She further submitted that the Applicant’s tenancy was not affected by section 19A. When that section came into force, the Applicant had already entered into his tenancy, which was a contractual tenancy. Since the tenancy was not an assured tenancy at any time before the Respondent left the premises, it was not caught by section 19A, either when the 1996 Act came into force or when the Respondent left the premises.
19. In the alternative, counsel for the Applicant submitted that, if the Applicant did have an assured tenancy within the meaning of section 19A, it was entered into pursuant to a contract made before 28/2/97, and therefore was excluded from the definition of assured shorthold tenancy by the words in brackets.
20. Counsel for the Respondent argued that the Applicant’s interpretation ran counter to the plain wording of section 19A. It involved deleting the word “assured” before “tenancy” in the first line. The Applicant had put too much emphasis on the contract.
21. Counsel for the Respondent submitted that the first date on which the Applicant’s tenancy could have been an assured tenancy, whether shorthold or non-shorthold, was after the Respondent had moved out on or about 27th January 2007. She stressed the words “if and so long as” in s.1(1) of the Housing Act 1988 and contended that they applied to each of subparagraphs (a) (b) and (c).
22. The effect of s.19A, it was further submitted, was to graft a new statutory status onto an existing contractual tenancy. The words “entered into” in subparagraph (a) were apt to cover the statutory tenancy, arising by operation of law or by implied surrender and re-grant. Since that statutory tenancy arose after 28th February 1997, it could only be an assured shorthold tenancy.
23. As to the Applicant’s alternative argument, counsel for the Respondent submitted that the proviso relied on by the Applicant simply did not apply. There was in this case no tenancy entered into pursuant to a contract made before 28/2/97. The only contract was the oral tenancy agreement of 10/1/97.
24. I have no hesitation in preferring the submissions of counsel for the Respondent. It is common ground that the Applicant did not have any form of assured tenancy before the Respondent left in January 2007. He cannot backdate his statutory tenancy to January 1997, as if it had lain dormant and sprung to life on the Respondent’s departure.
25. By January 2007 the law had moved on. In fact, the 1996 Housing Act had been in force for almost ten years. The purpose of the legislation had been thenceforth to replace assured tenancies with assured shorthold tenancies. Earlier assured tenancies remained, with the greater protection afforded to tenants, but the Applicant did not hold an earlier assured tenancy.
26. I accept counsel for the Respondent’s submission that the words “entered into” are apt to cover a statutory tenancy arising by operation of law or by implied surrender and re-grant. I also accept her submission that counsel for the Applicant’s interpretation of s.19A is a misinterpretation, which runs counter to the plain wording of the statute.
27. Once it is accepted that the assured tenancy arose when the Respondent left the premises, whether by operation of law or by implied surrender and re-grant, it seems to me to follow inexorably that the assured tenancy is an assured shorthold tenancy. I do not see how the Applicant can sensibly contend otherwise.
28. In my judgment, there is nothing in the Applicant’s alternative argument. The proviso does not apply in this case, for the reason given by counsel for the Respondent. In my view it is designed to cover cases which straddle the coming into force of the new Act, where there was a contract before 28/2/97, and by virtue of that contract the tenancy commenced thereafter.
29. For completeness, I should mention that each counsel referred me to an authority. I have also noted the references in the Applicant’s skeleton argument to other statutory provisions. But, as both counsel accepted, none of the authorities or statutory provisions are of direct relevance to the point in issue. I have found them to be of little assistance.
30. I could only give permission to appeal, if there were a real prospect of success or some other compelling reason. It will have become obvious that I do not consider that there is a real prospect of success. No other compelling reason was advanced and I do not consider that there is one.
31. I therefore refuse permission to appeal. I consider that the District Judge came to the correct conclusion on the point he had to decide and that he was right to refuse permission to appeal. I would pay tribute to his clear and careful judgment.
32. Finally, I would like to thank both counsel for their helpful submissions. The application will be dismissed.
33. After preparing the judgment just delivered, I received a further joint submission from counsel, emphasising the different tests for permission to appeal and for the appeal hearing itself. In the light of that submission, I add this postscript.
34. What I have heard and determined is an application for permission to appeal, nothing more and nothing less. The appeal was listed to follow for the convenience of the parties and to save unnecessary costs. In the event, it did not fall to be determined.
35. I recognise that, in principle, it would have been possible to grant permission and then to dismiss the appeal, but I have not done so. Like the District Judge, I have formed a clear view and I am not satisfied that I have misdirected myself.
36. It does not follow from the fact that I heard full argument on behalf of the Applicant that he must have a real prospect of success on appeal. I have found the contrary. In these circumstances it would not be right to grant him permission to appeal simply to enable him to pursue the case to the Court of Appeal.
