Lease – Tenancy agreement – Termination — Appellant landlord giving notice purporting to terminate tenancy at end of probationary period – Appellant’s employee mistakenly confirming assured periodic tenancy by letter on anniversary of start of tenancy — Appellant seeking order for possession – County court confirming respondent as assured tenant – Whether judge applying correct test in considering whether respondent entitled to rely on anniversary letter as notice of assured tenancy — Appeal dismissed
The appellant landlord granted to the respondent tenant an assured shorthold tenancy (AST) of a property under a probationary tenancy agreement, which provided that the appellant would occupy the property for 12 months as an assured shorthold tenant. At the end of that 12-month period, if the appellant had not terminated the tenancy it was to convert automatically into an assured periodic tenancy.
It was alleged that the respondent, who suffered from depression, mental health and behavioural problems, engaged in anti-social behaviour. Therefore, shortly before the probationary period was due to expire the appellant served on the respondent notices requiring possession of the property. The notice stated that, given the service of the notices on him, the respondent would remain at the property as an assured shorthold tenant under his probationary tenancy. The enclosed notice requiring possession at the end of the probationary period was sent in accordance with section 21(4)(a) of the Housing Act 1988 (as amended).
However, on the anniversary of the start of the tenancy, the appellant’s housing assistant wrote to the respondent, stating that he had successfully completed his probationary tenancy and was now an assured tenant of the property. However, the appellant commenced court proceedings seeking possession of the property. The county court found that the anniversary letter was a notice for the purposes of para 2 of Schedule 2A to the 1988 Act and, notwithstanding that it had not been the intention of the other parts of the landlord’s operation, the AST had been converted into an assured tenancy.
The appellant appealed, contending that the judge had not had proper regard to the context and background in which the anniversary letter was sent. Had the judge had proper regard to the test propounded in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57; [1997] 24 EG 122; [1997] 25 EG 128, he would have been found that the anniversary letter did not constitute a notice under the 1988 Act and was an incorrect acknowledgment of a state of affairs that had never existed since the respondent had not completed the probationary period.
Held: The appeal was dismissed.
The anniversary letter constituted a notice under para 2 of Schedule 2A. It was neither possible nor legitimate to rely on the preceding factual history and preceding letter as controverting the meaning of the anniversary letter. A tenant was not expected to enquire into a landlord’s reasons for serving an otherwise unambiguous notice in connection with a lease. In any event, a tenant might think that the landlord had changed its mind. Mannai involved an identifiable internal ambiguity within the notice and was different from the instant case, where no such ambiguity arose. The mistake was not in the wording but in the fact that the letter was sent.
The instant case was distinguishable from Barclays Bank plc v Bee [2001] EWCA Civ 1126; [2001] 3 EGLR 41; [2001] 37 EG 153, where a notice opposing the grant of a new tenancy that (invalidly) failed to state the grounds of opposition was sent together with an (ostensibly valid) notice stating that the landlord would not oppose the grant of a new tenancy: the accompanying letter stated that a notice to terminate the lease was enclosed together with a copy to be returned. In that case, it was held that the letter and the two notices had to be considered together and that a reasonable recipient would have been left in doubt as to the intentions of the sender. However, that was different from the instant case, where the anniversary letter of had been sent after the previous letter and notices. In principle, an ostensibly valid notice could not be invalidated by reference to extraneous material.
Accordingly, the anniversary letter and its effect were not ambiguous. The notice fell within the ambit of para 2 of Schedule 2A to the 1988 Act (as amended), and purported reliance on the background to controvert that was misplaced.
Philip Glen (instructed by Coffin Mew LLP, of Southampton) appeared for the appellant; Marc Living (instructed by EJ Moyle, of Littlehampton) appeared for the respondent.
Eileen O’Grady, barrister
