Landlord and tenant – Possession – Section 83 of Housing Act 1985 – Appellant succeeding to father’s tenancy on death – Respondent local authority serving notice for possession – Respondent failing to issue possession proceedings before notice lapsed – Court making order dispensing with requirement of notice – Appellant appealing – Whether just and equitable to dispense with notice – Appeal allowed
Until he died on 4 September 2014, the appellant’s father occupied a four-bedroom house at 35 Victorian Grove, Yorkshire Grove Estate in London under a secure tenancy granted by the respondent local authority. The appellant succeeded to his father’s tenancy pursuant to section 89 of the Housing Act 1985. In January 2015, the respondent informed the appellant that he was under-occupying the property and would be required to move to alternative accommodation. Following the appellant’s refusal to accept one or more offers of one-bedroom accommodation, the respondent served on him a “notice of seeking possession” dated 23 June 2015.
The notice, which referred to section 83 of the 1985 Act, stated that the respondent intended to apply to the court for an order requiring him to give up possession. It was explained that possession would be sought on ground 15A of schedule 2 to the 1985 Act and that court proceedings would not be begun until after 20 July 2015. The end of the notice stated that after that date “court proceedings may be begun at once or at any time during the following twelve months. Once the twelve months are up this notice will lapse and a new notice must be served before possession can be sought”.
As a result of a clerical error, the respondent did not in fact issue possession proceedings until 8 August 2016, more than 12 months after 20 July 2015. As a result, the appellant defended the claim on the basis that the notice of 23 June 2015 had lapsed. The respondent responded by applying for an order pursuant to section 83(1)(b) of the 1985 Act dispensing with the requirement of a notice of seeking possession. A deputy district judge concluded that it was just and equitable to dispense with the requirement to serve a notice and so ordered. A deputy circuit judge upheld that decision. The appellant appealed.
Held: The appeal was allowed.
(1) In general, a secure tenancy could not be brought to an end unless the landlord served notice pursuant to section 83 and established one or more of the grounds set out in schedule 2 to the 1985 Act. However, section 147 of the Housing Act 1996 incorporated a power to dispense with notice. The respondent sought to draw a distinction between a case in which a landlord had served a section 83 notice which had lapsed before proceedings were issued and one in which no valid notice had ever been served. However, it was difficult to see why parliament should have wished a landlord to be able to claim possession under ground 15A where a notice had been served and allowed to expire but not where no notice had been served. A notice warned the tenant that proceedings might be begun “during the following twelve months” after the specified date and stated in terms that, once the twelve months were up, the notice would lapse and a new notice had to be served before possession could be sought. A notice could not, therefore, be regarded as containing a warning that it might enable the landlord to bring possession proceedings more than a year after the specified date.
(2) Were the respondent’s construction of ground 15A correct, a landlord which had served a notice less than 12 months after the “relevant date” could invoke the ground years later without obtaining any dispensation under section 83(1)(b). There appeared to be nothing to prevent a landlord satisfying section 83 by serving a further notice and issuing proceedings before that later notice ceased to be in force. It would then be able to say that it had satisfied both ground 15A and section 83. There would be no need to ask the court to dispense with the notice requirement. That argument was not compelling. It was probable that section 147(3) of the 1996 Act, which introduced the words “or, where no such notice was served, the proceedings for possession were begun” after the phrase “notice of the proceedings for possession was served under section 83”, was designed to impose on landlords a requirement that, absent a notice, the proceedings had to be brought within a year of the relevant date.
(3) The court was unable to accept the respondent’s approach to ground 15A. Where a landlord brought proceedings for possession relying on ground 15A, notice of those proceedings must have been served under section 83 less than 12 months after the “relevant date”. However, section 83 provided for a notice to cease to be in force 12 months after the date specified in it. A notice could not constitute notice of proceedings begun more than 12 months later than the specified date. It was not good enough that the landlord had at some stage served a notice which, pursuant to both its own terms and those of section 83, was now spent. A notice still had to be current if a landlord was to issue possession proceedings on the strength of it. In the absence of a relevant notice, a claim for possession based on ground 15A would be possible only if the proceedings were begun less than 12 months after the “relevant date”.
(4) That interpretation of ground 15A accorded with the fact that the time provisions in ground 15A were there to ensure that the relative was not disturbed so much later that he was settled into the property as his own long-term home. It also avoided any question of a landlord being able to invoke ground 15A on the basis that he had served a lapsed notice within 12 months of the “relevant date” and a second one complying with section 83 later. In the present case, the proceedings were issued neither within 12 months of the “relevant date” nor while the 23 June 2015 notice was in force. In the circumstances, the respondent was not entitled to rely on ground 15A: Newport City Council v Charles [2008] EWCA Civ 1541, [2009] 1 WLR 1884; [2008] PLSCS 218 followed.
Edward Fitzpatrick and Stephen Marsh (instructed by Hodge Jones & Allen LLP) appeared for the appellant; Adrian Davis and Miriam Shalom (instructed by Hackney Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Yildiz v Hackney London Borough Council
