1) Molly Dibbs and Others (Plaintiffs) Respondents) v 1) Robert Campbell and Another Appellants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,MRS. JUSTICE HEILBRON |
| Judgment Date | 23 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0223-3 |
| Docket Number | 88/0147 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 1988 |
[1988] EWCA Civ J0223-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE HUNTER)
Royal Courts of Justice.
Lord Justice Purchas
and
Mrs. Justice Heilbron
88/0147
Case No. 87 D 5159
MR. S. CAKEBREAD (instructed by Messrs. Malthouse Chevalier) appeared on behalf of the (Plaintiffs) Respondents.
MR. GRAHAM CLARK (instructed by Messrs. Lawrence & Co.) appeared on behalf of the (Defendants) Appellants.
This appeal is against a possession order made by His Honour Judge Hunter on 5th October, 1987 at the Wandsworth County Court. The order was in respect of land at 1A Mallinson Road, London, S.W.ll ("the premises") and was in favour of the applicants, Molly Dibbs, Sheila Ellen Constantine and Peter O'Toole, to whom collectively and severally I shall hereafter refer as "the landlords". The appellants, against whom the order was made, were Robert Campbell and Brian John Bunker, to whom I shall refer as "the tenants". The order against the appellants also provided for its enforcement in prescribed circumstances. These parts of the order are not in issue in this appeal which conerns the application of Case 19 in Part 2 (cases in which the court must order possession where dwelling-house is subject to regulated tenancy) of Schedule 15 of the Rent Act 1977 ("the 1977 Act").
Before coming to the facts, which are largely not in dispute, it is convenient to set out the relevant parts of the statutory code under which the order was made. These are contained in the 1977 Act and the Housing Act 1980 ("the 1980 Act"). The 1977 Act created protected tenants and tenancies (see section 1). Subject to the provisions in Part I of the 1977 Act, a tenancy under which a dwelling-house is let as a separate dwelling is a protected tenancy. Section 2(1) provides that after the termination of a protected tenancy the person who was in occupation immediately before the termination and thereafter remains in occupation of the dwelling-house becomes a statutory tenant. Section 98(2) provides that the court shall make an order for possession if the circusmtances are as specified in any of the cases in Part 2 of Schedule 15.
Part II of the 1980 Act created a new kind of protected tenancy known as "a protected shorthold tenancy". By way of introduction before citing the relevant provisions, the intention of Parliament appears to have been the creation in carefully controlled circumstances of short tenancies of not less than one year and not more than five years' duration in which both landlord and tenant were afforded a degree of protection; the one against statutory tenants holding over for indefinite periods under the 1977 Act and the other protection from rent reviews during a specified period. The relevant provisions are as follows:
"52. Protected shorthold tenancies.
(1) A protected shorthold tenancy is a protected tenancy granted after the commencement of this section which is granted for a term certain of not less than one year nor more than five years and satisfies the following conditions, that is to say,—
(a) it cannot be brought to an end by the landlord before the expiry of the term, except in pursuance of a provision for re-entry or forfeiture for non-payment of rent or breach of any other obligation of the tenancy; and
(b) before the grant the landlord has given the tenant a valid notice stating that the tenancy is to be a protected shorthold tenancy; and
(c) either a rent for the dwelling-house is registered at the time the tenancy is granted or—
(i) a certificate of fair rent has, before the grant, been issued under section 69 of the 1977 Act in respect of the dwelling-house and the rent payable under the tenancy, for any period before a rent is registered for the dwelling-house, does not exceed the rent specified in the certificate; and
(ii) an application for the registration of a rent for the dwelling-house is made not later than 28 days after the beginning of the term and is not withdrawn.
(2) A tenancy of a dwelling-house is not a protected shorthold tenancy if it is granted to a person who, immediately before it was granted, was a protected or statutory tenant of that dwelling-house.
(3)…
(4)…
(5) If a protected tenancy is granted after the commencement of this section—
(a) for such a term certain as is mentioned in subsection (1) above, to be followed, at the option of the tenant, by a further term; or
(b) for such a term certain and thereafter from year to year or some other period;
and satisfies the conditions stated in that subsection, the tenancy is a protected shorthold tenancy until the end of the term certain.
…
55. Orders for possession.
(1) The following Case shall be added to the Cases in Part II of Schedule 15 to the 19 77 Act (mandatory orders for possession):
Case 19
Where the dwelling-house was let under a protected shorthold tenancy (or is treated under section 55 of the Housing Act 1980 as having been so let) and—
(a) there either has been no grant of a further tenancy of the dwelling-house since the end of the protected shorthold tenancy or, if there was such a grant, it was to a person who immediately before the grant was in possession of the dwelling-house as a protected or statutory tenant; and
(b) the proceedings for possession were commenced after appropriate notice by the landlord to the tenant and not later than 3 months after the expiry of the notice.
A notice is appropriate for this Case if—
(i) it is in writing and states that proceedings for possession under this Case may be brought after its expiry; and
(ii) it expires not earlier than 3 months after it is served nor, if, when it is served, the tenancy is a periodic tenancy, before that periodic tenancy could be brought to an end by a notice to guit served by the landlord on the same day;
(iii) it is served—
(a) in the period of 3 months immediately preceding the date on which the protected shorthold tenancy comes to an end; or
(b) if that date has passed, in that period of 3 months immediately preceding any anniversary of that date; and
(iv)…
(2) If, in proceedings for possession under Case 19 set out above, the court is of opinion that, notwithstanding that the condition of paragraph (b) or (c) of section 52(1) above is not satisfied, it is just and equitable to make an order for possession, it may treat the tenancy under which the dwelling-house was let as a protected shorthold tenancy."
These provisions demonstrate the protection afforded by the 1980 Act to ensure that unscrupulous landlords would not contravene the spirit and purpose of the Rent Acts by imposing upon reluctant but prospective tenants the restricted protection afforded by the shorthold protected tenancy, but at the same time encouraged reluctant landlords to make leasehold accommodation available under terms of between one and five years. Further, section 52(2) prevents the landlord from avoiding statutory protection already acquired by tenants under the 1977 Acts by inducing statutory tenants to enter into a protected shorthold tenancy. The contents of the notice in order to be valid are carefully specified by regulations. On the other hand, section 55(2) provides protection for the landlord against a failure on his part or on the part of those who act for him to comply with the technical requirements of section 52 where "it is just and equitable" to do so. In coming to consider the circumstances of the present appeal it is, in my judgment, important to bear in mind the statutory intentions disclosed by these provisions.
The relevant history can be shortly stated. In November 1982 the landlords and the tenants intended to enter an agreement creating a protected shorthold tenancy. There was no previous landlord and tenant relationship between them so as to attract the provisions of the 1977 Act. Accordingly an agreement was entered between the parties dated 26th November providing for a protected shorthold tenancy to start on 29th November, 1982 and to run for the period of one year. All would have been well but for the misconduct of the solicitors acting for the landlords. They failed to comply with the technical requirements of section 52(1)(c) of the 1980 Act. The agreement had provided for a rent of £80 per week. Eventually, after the time required by the Act to qualify for a shorthold protected tenancy, a rent of £40 per week was registered on 3rd March, 1983. The landlord's solicitors realised in due course that things had gone wrong. The judge found that had possession been sought at the end of the one year tenancy he would have had a discretion to act under the saving provision of section 52(2) and would have exercised his discretion in favour of the landlords.
In an attempt to retrieve the position a course of action was devised which involved a surrender under deed of the tenancy, whatever it may have been, created by the first agreement and the granting of a new protected short-hold tenancy for a longer period, namely three years, and for the repayment by the landlords of various sums due to the tenants, e.g. rent paid in excess of the registered rent, etc. Mr. Bunker, one of the tenants, testified before the learned judge that the tenants entered this second agreement under pressure from the landlords. The learned judge totally rejected his evidence on this crucial aspect of the case.
Accordingly, in April 1983 the landlords' solicitors were in touch with the tenants through Mr. Bunker. These...
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