Tenant becoming assured tenant by succession on death of statutory tenant – Landlord serving notice of fourfold increase in rent – Landlord using form superseded by recent regulation – Tenant paying no rent at all – Tenant lacking mental capacity to manage own affairs – Tenant appealing against possession order – Whether tenant properly served with required notices
The appellant tenant, aged 62, had lived in a flat in London SW11, for 54 years, his parents having taken up occupation in or about July 1945. By a memorandum signed in October 1965, the then landlord granted a lease to the tenant’s father for a three-year term, expressed to commence on 24 June 1965, at an annual rent of £225, payable by monthly instalments. On the death of the tenant’s father in 1981, his mother became statutory tenant of the flat by succession. The tenant’s mother died on 5 January 1997, at which time the recoverable regulated rent was £200 per month.
On 31January 1997 the agent for the respondent landlord wrote to the tenant, acknowledging that he occupied the flat as an assured tenant by succession, and informing him that it was intended to increase the rent to £800 per month. On 12 June 1997 the landlord served a notice under section 13(2) of the Housing Act 1988 purporting to increase the rent as from 20 July 1997 to “£9,600 per annum”. The form of notice used by the landlord had, in fact, been superseded since February 1997 by a new form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997. On 24 June 1998 the landlord, having at no time received any rent from the tenant and having served a notice under section 8 of the 1988 Act, obtained an unopposed court order for possession. However, in the course of the tenant’s eviction on 2 September 1998, it became apparent that he was suffering from a mental disorder, which was confirmed in a medical report made on 25 September 1998.
On 8 February 1999 the tenant, having obtained a certificate of incapacity, obtained a county court order setting aside the possession order and appointing the Official Solicitor as his guardian (now litigation friend) for the subsequent conduct of the action. Pursuant to the terms of the order, the tenant paid £5,000 into court in respect of the undisputed arrears (25 x £200) that had accrued since the inception of his tenancy.
The landlord commenced a second action, having served on the tenant, his solicitor and the Official Solicitor a fresh section 8 notice stating, by reference to Schedule 2 to the Act, that possession would be sought under the mandatory ground 8 (at least two months’ rent unpaid) and the discretionary ground 11 (persistent delay in paying rent). The tenant contended that: (i) the section 13 notice of increase was formally defective in various respects; and (ii) neither the section 13 notice nor the section 8 notice had been validly “served”, as the tenant was incapable of understanding their significance. Both submissions were rejected by the trial judge, who made an order for possession and for the payment of £19,600 arrears of rent. The tenant appealed.
Held: The appeal was dismissed.
1. By para 2 of the 1997 Regulations, any reference to a numbered form was a reference to the form bearing that number or to a form “substantially to the same effect”. The judge had correctly found the old form used by the landlord to be substantially to the same effect as the new form, as the changes went solely to format. Nor could the tenant have been misled by the fact that the increased rent had been stated – as, indeed, had been done in the 1965 agreement – as an annual figure, there being nothing to suggest that the basis of payment was to be changed.
2. Looking solely at the 1965 lease, the increase should have been expressed to take effect on the 24th of the month. However, having found that the rent had, for many years, been paid and accepted on the 20th of each month, the judge was entitled to infer that the parties to the lease had agreed to vary the relevant commencement date, and had correctly refused to find the notice defective in that regard.
3. The incapacity of the tenant had no bearing on the validity of the notices, these having been effectively “served”, within the meaning of sections 8 and 13, when they were delivered. It was no concern of the landlord whether the tenant understood the notices or simply refused to read them. There was no evidence that the landlord knew, at any material time, of the tenant’s disability.
4. Since the notices contained no errors, it was unnecessary to decide whether they would, in any event, have been validated by the principle laid down in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57. However, the court had no reason to criticise the judge’s ruling that the principle would have applied.
Jan Luba (instructed by HCL Hanne & Co) appeared for the tenant; Tom Weekes (instructed by Chanas) appeared for the landlords.
Alan Cooklin, barrister
