Tenant disputing existence of assured shorthold tenancy of flat – Tenant claiming that he had become tenant before service of a notice then required by section 20 of the Housing Act 1988 – Whether tenancy had arisen – Whether Appeal Court entitled to disturb primary finding as to fact of service – Whether service on tenant’s agent sufficient – Landlord’s appeal allowed
In June 1995 the parties agreed, subject to contract, to the defendant taking a lease of the claimant’s duplex flat in Great Cumberland Street, London W1, for a fixed term expiring in 2001. Thereafter, all material correspondence was exchanged between the claimant’s solicitor (A) and a licensed conveyancer (M), who acted for the defendant.
On 18 July A forwarded a draft lease, with a covering letter stating that she also enclosed a copy of the notice to be served by the landlord prior to entering into the agreement. On 27 July A forwarded a further draft containing certain revisions. M replied that the defendant would like to complete by 1 August. On 31 July A forwarded to M an engrossment of the agreement for execution by the defendant. The covering letter referred to an enclosed notice served pursuant to section 20 of the Housing Act 1988, without which the intended tenancy could not, at that time*, take effect as an assured shorthold tenancy. On 1 August M returned the engrossment, which had been signed by the defendant. On the following day, and by arrangement with the claimant, the defendant, having obtained the keys to the flat, brought in some of his possessions and carried out certain cleaning work in anticipation of moving his furniture into the flat. On 4 August A, who had obtained the claimant’s signature, forwarded a revised section 20 notice, receipt of which was acknowledged by M by fax shortly after midday. On receipt of that fax, A inserted in both copies of the agreement the date of 4 August as the commencement date and the date of 25 March 2001 as the expiry date of the tenancy. The part signed by the claimant was duly forwarded to M.
In the final year of the term, the claimant sought, but failed to obtain, a county court declaration that the tenancy was in fact an assured shorthold tenancy, as so recited on the front page of the agreement and the earlier drafts. The claimant appealed, inter alia, against the judge’s findings that: (i) no section 20 notice had been served before 4 August 1995; and (ii) because of the events of 2 August, the defendant had become an actual, rather than prospective, tenant before the date of service. The claimant appealed to the High Court.
Held: The appeal was allowed.
Applying a long line of authority (the most recent being Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2001] 1 All ER 700), the present case formed an exception to the general rule that an appellate court should be bound by findings of primary fact in the court below. A careful examination of the transcript of the county court hearing made it impossible to accept the finding that A had failed to enclose a section 20 notice with her letter of 21 July. It was further clear that the mere fact that the defendant had been allowed access to the flat before 4 August did not show that he moved in as tenant. Nor could the defendant claim that an equitable lease had been created at an earlier date, the reason being that the formal requirements, imposed by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, had not been observed.
Contrary to the defendant’s submissions, there was no reason why a section 20 notice could not be validly served upon a duly authorised agent of the tenant (see Galinski v McHugh [1989] 1 EGLR 109), nor was there anything to suggest that the authority given to M did not extend to accepting such service.
* Editor’s note: The tenancy having been agreed before 28 February 1997: see Housing Act 1996.
Jonathan Brock QC and Emily Windsor (instructed by SJ Berwin & Co) appeared for the appellant; Christopher Pymont QC and Nigel Thomas (instructed by Rippon Patel & French) appeared for the respondent.
Alan Cooklin, barrister
