Assured tenancy which would have been assured shorthold but for estate agent’s error – Landlord’s possession action founded on need for home for himself and family – Whether just and equitable to dispense with prior notice that possession might be sought on this ground in case where tenant never made aware of such possibility – Landlord’s appeal successful – Recent authority not cited
In 1991 the plaintiff, together with his sister, acquired a house in Palmers Green, North London, where he lived for a short while. In December 1994, using a form prepared by an estate agent (since made bankrupt), he granted a 12-month tenancy of the house to the defendant at a rent of £180 per week. Although the form described itself as an agreement for an assured shorthold tenancy, it was common ground that it did not take effect as a shorthold as the agent had failed to serve the prior notice as required at that time by section 20 of the Housing Act 1988. In or about October 1996 the plaintiff, aware that the defendant held as assured tenant, brought proceedings for possession, founded on Ground 1 of Schedule 2 to the Act, contending that he required the house as his only or principal home, and that it was just and equitable to dispense with the requirement to notify the tenant in writing, at or before the beginning of the tenancy, that possession might be recovered on this ground.
At the subsequent trial, at which the defendant chose not to appear, the judge accepted that the plaintiff had been badly served by his agent and that he needed the house in order to live with his wife and newly born child. It was nevertheless held not to be just and equitable to dispense with the notice requirement, as no indication of any kind had been given to the tenant at the beginning of the tenancy that the plaintiff might require the premises back for his own occupation. The plaintiff appealed.
Held The appeal was allowed.
Although an appellate court would rarely interfere in the exercise of judicial discretion, an exception would be made since the judge would have certainly decided differently had his attention been drawn to the decision of the Court of Appeal in Boyle v Verrall [1997] 04 EG 145. That case made clear that the failure to make the tenant so aware, while an important factor, was in no way conclusive on the question whether the discretion should be exercised against the landlord. Had that authority been cited, the judge would have given greater weight to the plaintiff’s family situation and to the fact that the form of the agreement did at least warn the tenant that no security of tenure was intended to be given. Given additionally the failure by the tenant to advance the merits of her case, there were no valid reasons for refusing an order for possession.
Daniel Gatty (instructed by Hugh Cartwright & Amin) appeared for the landlord; the tenant did not appear and was not represented.
