Claim for possession against residential tenant — Arrears of rent — Appeal against order of county court that possession should be given — Whether valid notice to quit served — Whether tenancy a statutory tenant — Whether county court considered reasonableness of making order
is the monthly tenant of residential premises — The rent had been registered
since 1989 at £175 a month — There were arrears of rent in 1990 — The
respondent landlord served a notice to quit on February 1 1991 — The summons
for possession indicated two months’ arrears amounting to £350 but the
particulars of claim related to £150 — The summons was adjourned on June 24
1991 for the respondent landlord to prove service of the notice to quit — The
court made an order for possession within 28 days suspended upon the
appellant’s paying the arrears on terms — The appellant appealed that decision
taking the following points — The service of the notice to quit had not been
proved — The notice to quit was in any event invalid — The respondent landlord
was not entitled to any sum other than that claimed in the particulars of claim
— The county court had not considered whether it was reasonable to make an
order for possession under section 98(1) of the Rent Act 1977
quit had been served relying upon the documents on the court file and an
affidavit of service — Had the tenancy been contractual, the notice to quit was
admittedly defective — There was little doubt that it was a statutory tenancy —
It was pleaded as a statutory tenancy and it was reasonable to assume in the
case of a tenancy lasting for a long time that it had been converted to a
statutory tenancy — Accordingly, the form of the document called a notice to quit
was of no importance save that it was important that the tenant should be given
notice that he was expected to leave and the lack of a letter before action or
similar warning may affect the issue of reasonableness under section 98 of the
1977 Act — There was an obvious technical error in the particulars of claim
which was of no consequence — The county court had exercised its discretion
under section 98 as was made clear from the evidence — The appeal was dismissed
The following
case is referred to in this report.
Morrison
v Jacobs [1945] KB 577
This was an
appeal by the defendant, Alan Wareing, from the decision of Judge Hitching,
sitting in Bow County Court in an action by the plaintiff, Nicholas York White,
for arrears of rent and possession of 41 Gordon Road, Wanstead, London E18.
Renee Calder
(instructed by Ouvry Goodman & Co, of Sutton) appeared on behalf of the
appellant; Graham Read (instructed by Edell & Jones) represented the
respondent.
Giving the
first judgment at the invitation of Stocker LJ, BUTLER-SLOSS LJ said:
The appellant is the tenant of 41 Gordon Road, Wanstead. He has been the tenant
for many years. There have been a number of applications between him and his
landlord with respect to rent assessments before the rent assessment panels and
boards and indeed he is the subject of a decision of this court in 1985,
referring to an assessment in March 1983*. Again there was an assessment of
July 1989. He has held this property on a monthly tenancy, the 26th day of the
month being a rent day, at a rent since 1989 of £175 a month. It seems clear to
this court that he is and has for many years been a statutory tenant. He was
not actually so described in the evidence, or in the judgment of Judge
Hitching, although it was pleaded in the particulars of claim that he held as a
statutory tenant.
*Editor’s
note: Wareing v White [1985] 1 EGLR 125; (1985) 274 EG 488.
There were
arrears of rent in the latter part of 1990. No payment was made after January 1
1991 and the landlord issued a notice to quit on February 1 1991, together with
a covering letter. There was a subsequent letter from the landlord to the
tenant, undated, subsequent to February 1 but prior to the issue of the summons
for possession on May 1. That letter indicated the intention of the landlord to
take proceedings and that the tenant was expected since the notice to quit to
vacate.
The
particulars of claim, together with the summons for possession, indicated two
months’ arrears before the issue of proceedings. Those two months were shown in
the summons as coming to £350, but shown in the particulars of claim as £150,
together with a claim for mesne profits. It seems clear that the £150 in the
particulars of claim was a typing error, but it was not corrected before the
judge.
The tenant
filled in a form for replying to a summons for possession of land in which he
ticked the ‘No’ box in answer to the question ‘Do you admit the plaintiff is
entitled to possession of the premises?’
and gave as his reason ‘No notice to quit served’. Also he did not admit
the money claim because he said cheques had been sent by post. He did not
choose to file a defence to the particulars of claim. Consequently the only
defence before the court was the form for replying to a summons and the only
matter raised before the court was the lack of service of notice to quit,
together with the dispute as to the amount of money owing.
On June 24 the
summons for possession came before Judge Cox. He made an order that the matter
be adjourned to July 1 for the plaintiff to prove service of the notice to
quit. On July 1 it came before Judge Hitching and his decision is the subject
of the appeal to this court.
The tenant
acted for himself, although today he is represented by counsel. He asked for an
adjournment and indicated his intention at the adjournment to raise certain
legal matters relating to the form of the notice to quit. The judge said that
the notice to quit was on the file, having been received in copy form by Judge
Cox on the previous occasion and that it was in proper form. The tenant was
informed he could have an adjournment only on terms that he paid the costs
thrown away. He chose not to have an adjournment on those terms. The landlord
gave evidence and the tenant gave evidence.
The judge held
that possession should be given on this property and it was to be a 28-day
order but that ‘the judgment for possession be suspended upon the Defendant
paying £570.00 in 14 days and [the] balance of £305 within [a] further 14 days
thereafter’. The defendant appeals this decision.
Counsel on
behalf of the tenant before us in this court today has exhaustively covered
every point available. They can be summarised as five points, which include
leave that we have granted at a very late
erred in law in not considering whether it was reasonable to make an order for
possession in all the circumstances as he is required to do by section 98 of
the Rent Act 1977.
The first
point raised was the service of the notice to quit. This was the only point
raised in the form for replying to the summons and the point upon which the
matter was adjourned from Judge Cox to Judge Hitching. At the first hearing on
June 24 there was handed in to Judge Cox both a copy of the notice to quit and
a copy of the covering letter to the defendant. Before Judge Hitching there was
also an affidavit that had been sworn on June 24 by the clerk receptionist in
the employ of the solicitors, who swore that she did on February 1 serve the
defendant with a notice to quit by posting the same, together with the covering
letter, and delivered the letter to the subpost office in East Ham. But the
letter or envelope has not been returned through the dead letter service.
Criticism was made of this affidavit, including the fact that it does not
specifically exhibit either the copy notice to quit or the covering letter,
which had of course been handed to the judge in the previous week. Indeed it
had already been handed to the judge, no doubt, the very same day this
affidavit was sworn and was consequently not available to the deponent.
It is said
that the judge on July 1 was not entitled to make the assumption that the copy
notice to quit signed by the solicitors, the copy letter coming from the
possession of the solicitors and the affidavit from somebody in the employ of
the solicitors could not be put together to make together sufficient evidence
to show, on the balance of probabilities, that the solicitors served this
notice to quit by posting it.
In my
judgment, a judge, particularly in the county court, where matters have to come
as best they can, is perfectly entitled to take such pieces of paper together
and find from them sufficient evidence from which to infer that this notice to
quit was properly served by post. To come to any other conclusion would be
flying in the face of common sense. There is nothing whatever to show that what
the landlord said, which was that he told his solicitors to get on and do it,
and what the solicitors indicate through their clerk receptionist and by
producing copies of the relevant documents did not, in fact, take place. I, for
one, am satisfied that this notice to quit was properly served in the ordinary
way by posting it and did not come back to the solicitors.
It is not
wholly irrelevant — though only a minor point, as the judge pointed out — that
a subsequent letter from the landlord reached its destination without the
slightest difficulty. This was a question of fact on which the judge was
entitled to make a finding, and this he did on the standard proof which is
required in the county court in civil matters as in any other civil court, ie
the balance of probabilities. There was just the hint of a suggestion that some
other standard was required and I, for one, do not agree with that.
The next point
is the validity of the notice to quit. This depends upon whether this tenancy
was a contractual tenancy or a statutory tenancy. These are the second and
third points which are raised. It is conceded by counsel on behalf of the
respondent landlord that if the notice to quit is required to be effective as a
notice to quit and not as a piece of paper indicating a requirement for the
tenant to leave, as a notice to quit it is defective and it is not necessary
therefore to go into in what way it is defective. But it is said that it is not
necessary, if it is a statutory tenancy, for there to be a notice to quit in
proper form. It has not been suggested by counsel on behalf of the tenant that
that is an incorrect proposition of law and it is undoubtedly supported by a
decision of this court in Morrison v Jacobs [1945] KB 577, where
Scott LJ, who gave the leading judgment, said that in respect of the Rent and
Mortgage Interest Restrictions (Amendment) Act 1933 it was not necessary for a
landlord before suing to serve any notice to quit on the tenant, since the
landlord of course has to prove, under what is now section 98 and the
appropriate schedules to the Rent Act 1977, the grounds upon which possession
can be obtained in a Rent Act case.
So the point
comes to be considered, is this a statutory tenancy and was there evidence of
any sort, or inferences which the judge was entitled to make, that it was a
statutory tenancy?
There is
little doubt that it is now clear that it is a statutory tenancy. The degree of
enthusiasm for and reliance upon the notice to quit, particularly before Judge
Cox, may have been due to some degree of confusion on the part of the advocate
agent representing the landlord as to how important the notice to quit in
itself was. But by the time the case came before Judge Hitching it is quite
clear, to me at least, that he was considering this as a statutory tenancy.
First of all it was pleaded as a statutory tenancy and there was no defence to
say it was not. It was never suggested to him that it was a contractual
tenancy. It is reasonable to assume, in the case of a tenancy lasting for a
long time, as this had lasted, where there had been a number of references to
the rent tribunal, among other things, that this was a tenancy that had converted
to a statutory tenancy. I am satisfied, particularly bearing in mind that it
was pleaded as a statutory tenancy, that this is the way it was prosecuted
before Judge Hitching and it is clear that when he called Mr Wareing back at
the end of the evidence to ask him about his means and ability to pay, bearing
in mind that the claim here was in respect of failure to pay the rent, he was
considering the reasonableness of whether or not he should make a possession
order, which is, of course, one requirement under section 98 of the Rent Act
1977 — that he will not make an order unless the court considers it reasonable
to make such an order.
The majority
of cases in the county court these days are statutory tenancies. It is, I would
have thought, rare to have a contractual tenancy. When it is pleaded as a
statutory tenancy it is perfectly reasonable for the judge so to assume it
unless it is raised that it is not. Indeed, in this particular case, any other
conclusion than a statutory tenancy would have been an absurd one. In those
circumstances, the form of the document called a notice to quit was of no
importance. What was important was that the tenant should be given notice that
he was expected to leave, and those are the wise words in the note to the Rent
Act 1977, section 3, where it says, referring to Morrison v Jacobs,
that it is not required to give a statutory tenant any notice to quit. However,
the lack of a letter before action or similar warning may affect the issue of
reasonableness under section 98(1) and costs. Looking, therefore, at the notice
to quit as being purely and simply an important indication to the tenant that
he has to leave because an action for possession is to take place, that
document fulfilled its purpose. The judge found as a fact that it had been
served and the judge found that this tenant owed money.
The point is
made by counsel on behalf of the tenant that since the particulars of claim
indicated only £150, that is all the landlord is entitled to other than the
mesne profits. But I do not agree with her: (1) because the summons gave the
exact correct amount; and (2) because the evidence before the judge dealt with
the correct amount and the monthly payments that were unpaid and this was
purely and simply a technical error, first in a typing error and second in the
advocate for the landlord not asking the judge technically to amend the
particulars of claim. Justice should not be seen not to be done for what is
such an obvious technical error and that point also on behalf of the tenant falls,
in my judgment, by the wayside.
The last point
which is raised is that section 98(1) and the test of reasonableness had not in
fact been an exercise undergone by the judge, who had not exercised his
discretion to consider, in all the circumstances, whether or not he should
grant a possession order despite the fact that the facts of non-payment of rent
were proved. It is clear, however, from the notes of evidence that the
defendant was recalled and specific questions were asked of him of his means; and
means are, of course, in a non-payment of rent case, for which the application
for possession is made, quite the most relevant of the questions. It was also
shown that he was single, living in the property, that he had no other assets
than £494 in the bank, but that he was in a position to borrow some money from
friends. The judge said at the end of his judgment that he would make an order
for possession. I have no doubt that, as an experienced judge, in asking those
particular questions he was clearly putting his mind to the issue of
reasonableness.
In dealing
with the large number of claims that come through the county court, a circuit
judge cannot be expected on every single occasion to say: ‘I am specifically
putting my mind to section 98(1), and I consider in this particular case that
it will be reasonable to grant a possession order’. In an ideal world perhaps
he would do it, but one has so very often in these extempore judgments, as this
clearly was, to take from it what the judge was thinking, and from that and
from the evidence it is clear that he put his mind to section 98(1) and the
requirement of reasonableness, as one would expect any experienced judge trying
these possession actions to do. This was a perfectly straightforward case of a
statutory tenancy application for possession based on the non-payment of rent,
and a large number of red herrings have strayed across the path; none of them
is relevant in the event.
I would
dismiss this appeal.
SIR GEORGE
WALLER said: I entirely agree with the judgment of
Butler-Sloss LJ. I would only put in my own words the two main points which
were argued on behalf of the appellant.
First, the
question of whether or not this is a statutory tenancy and if the judge took
notice of it. It seems to me that the fact that the appellant was pleaded as
being a statutory tenant meant that the case was being dealt with on the basis
that he was a statutory tenant; the facts that the rent was registered and had
recently been fixed at £175 per month all go to support the view that it was a
statutory tenancy, and the allegation in the particulars of claim was not
challenged.
Second, was it
reasonable to make the order for possession?
In my judgment, as Butler-Sloss LJ has already said, the fact that the
learned judge went through the position of the tenant specially after making
the decision about the general principles showed that he was considering
whether or not it was reasonable and I entirely agree with Butler-Sloss in her
judgment.
STOCKER LJ said: I agree with both judgments. There is ample evidence on which
the judge could conclude that he was dealing with a statutory tenancy which
pre-existed the service of the notice to quit. It is also clear, for the
reasons given by Butler-Sloss LJ, that the judge considered the question of
reasonableness under section 98. Indeed, for my part, I would regard it as
difficult to accept that a judge of his experience in this field could possibly
have ignored that requirement before making an order for possession.
Appeal
dismissed; application for costs against the Legal Aid Board adjourned for 10
weeks; legal aid taxation for the appellant; application for leave to appeal to
the House of Lords refused.