Banjo v Brent London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick,Lord Justice Buxton,Lord Justice Thorpe |
| Judgment Date | 17 March 2005 |
| Neutral Citation | [2005] EWCA Civ 292 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B/2004/1535 |
| Date | 17 March 2005 |
[2005] EWCA Civ 292
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
HIS HONOUR JUDGE COPLEY
W1302582
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Chadwick and
Lord Justice Buxton
Case No: B/2004/1535
Mr Martin Russell (instructed by The Borough Solicitor, Town Hall Annexe, Forty Lane. Wembley, HA9 9HD) for the Appellant
Mr James Hanham (instructed by J D Spicer & Co of 140 Kilburn High Road, London NW6
4JD) for the Respondent
This is an appeal from an order made on 6 July 2004 by His Honour Judge Copley, sitting in Willesden County Court, in proceedings brought by Mr Olatunji Banjo against the London Borough of Brent.
The claimant in these proceedings, Mr Banjo, is the occupier of a dwelling house at 26 Claremont Road, London W9. He has lived there since the early 1970's. At first he occupied as sub-tenant of Aggrey Housing Limited, a housing association which, itself, held under a long lease for the residue of a term of 96 years from 29 September 1884. The reversion to that lease had become vested in Borough. In 1974 Mr Banjo acquired that long-leasehold interest from his immediate landlord. Thereafter, he held as tenant of the Borough for the remaining term of the lease. The rent payable under the lease was £6.50 per annum, payable half yearly in March and September. The contractual term of the lease expired on 28 September 1980. Mr Banjo has remained in occupation since that date. He has paid no rent. On 8 February 2002 the Borough gave notice of its intention to take proceedings to recover possession.
The present proceedings were commenced by the issue of a claim form on 1 May 2003. By his claim Mr Banjo sought a declaration that he was entitled to purchase the freehold of the premises at 26 Claremont Road under the provisions of the Leasehold Reform Act 1967 and an order requiring the Borough to comply with its obligations under that Act and to convey to him the freehold estate in the property. In support of that claim he relied on a notice served under section 5 of the 1967 Act as long ago as 30 January 1980. He pleaded (i) that the Borough had failed to serve a notice in reply to that notice within the period of two months prescribed by that Act, or at all, and (ii) that he had at all times been ready, willing and able to accept a conveyance of the freehold.
The judge dismissed that claim. He found, first, that the tenant's claim to buy had been admitted by a notice served by the landlord on 6 February 1980; second, that the landlord had made an offer (on 9 March 1980) to transfer the freehold interest at £11,000; and, third, that after considerable delay—attributable, he thought, to Mr Banjo's failure to find funds to complete the purchase—the claim to buy had been withdrawn in March 1982. The judge held that the claim to buy was barred by limitation and, in so far as relevant, by equitable principles of laches.
There is no appeal against the judge's order dismissing the claim. The matter comes before this Court because the judge also dismissed the Borough's Pt 20 claim for possession. That claim is put, in the pleading served on behalf of the Borough on 6 June 2003, in these terms.
"10. By virtue of Schedule 3 paragraph 3(1) of the 1967 Act the lease expired on 6 July 1992, three months following determination of the Claimant's claim to acquire the freehold by limitation.
11. The claimant has remained in possession as a trespasser since that date.
12. Brent claims possession of the Premises together with arrears of ground rent at a rate of £6.50 per annum from 1 May 1991 until expiry of the lease and thereafter until possession is delivered up damages at a rate to be assessed being the open market rental value of the Premises."
Those paragraphs must be read with paragraph 7 of the defence:
"7. 0n or about 6 April 1980 by virtue of section 5 and Schedule 3 paragraph 7 (5) of the 1967 Act [the tenant] became entitled to enforce that right [to enfranchise]. That right is a speciality within the meaning of the Limitation Acts and as such no action lies to enforce it following the expiry of the period of limitation laid down therefor in the Limitation Acts namely 12 years from its having arisen."
Paragraph 3(1) of Schedule 3 to the 1967 Act is in these terms (so far as material):
"(1) Where a tenant makes a claim to acquire the freehold … of any property, then during the currency of the claim and for three months thereafter the tenancy in that property shall not terminate … by effluxion of time …; but if the claim is not effective, and but for this sub-paragraph the tenancy would have so terminated before the end of those three months, the tenancy shall so terminate at the end of the three months."
6 July 1992 is, of course, the date which is three months after the date on which the limitation period of twelve years (which, as the judge held, was the period of limitation applicable to the claim to enforce the right to enfranchise) would have expired if the right to enforce the claim to enfranchise under the Act arose on 6 April 1980—as alleged in paragraph 7 of the defence. So much was common ground before the judge.
The defence to the landlord's claim for possession is pleaded at paragraphs 10, 11 and 12 of the Defence to Part 20 Claim:
"10…. at all times since 6 th July 1992 the Claimant has occupied the Premises as a secure tenant of the same within the meaning of Part IV of the Housing Act 1985 and he continues to so occupy the Premises
particulars
The Claimant is the yearly periodic tenant of the Premises at a rent equal to the rent reserved by the Lease namely £6.50 per annum
11. In the premises paragraph 11 of the Part 20 Claim is denied.
12. Further, by reason of the Claimant's failure to serve a notice complying with the provisions of section 83(2) of the Housing Act 1985, the Part 20 Claim is a nullity and should be dismissed."
The judge reminded himself that Mr Banjo's tenancy under the long lease was not a secure tenancy—see section 79(2)(a) of, and paragraph 1 of schedule 1 to, the Housing Act 1985. So that this was not a case in which the tenant could rely on the provisions of section 86 (1) of that Act to assert that he had been in occupation since 1980—or 1992—as a secure periodic tenant. And he noted that section 1 of the Landlord and Tenant Act 1954—which gives the protection of the Rent Act 1977 and the Housing Act 1988 to tenants who hold over after a long lease—could not assist the tenant in the present case because those Acts have no application to tenancies of which the landlord is the local authority.
The judge held that, on the determination of the long lease—which, as he thought, occurred on 6 July 1992 by virtue of paragraph 3 (1), schedule 3 to LRA 1967—the tenant remained in occupation as a tenant at will. On that basis he held that the tenancy was a secure tenancy for the purpose of the Housing Act 1985. He reached that conclusion because, as he held, it was a tenancy in relation to which both the landlord condition in section 80 of that Act and the tenant condition in section 81 were satisfied.
Permission to appeal on the issue whether or not Mr Banjo was a secure tenant was granted by this Court (Lord Justice Mummery) on 10 November 2004. The short point raised by the grounds of appeal is that the judge failed to appreciate that the true effect of section 86 of the Housing Act 1985 is that no secure tenancy can arise by reason only of continued occupation following the determination of a fixed term tenancy in a case where the fixed term was for more than 21 years. The tenant's response is that section 86 of the 1985 Act does not, of itself, purport to create security of tenure: it does no more than provide a mechanism by which secure fixed term tenancies become secure periodic tenancies upon determination of the contractual term by effluxion of time or forfeiture. There is nothing in section 86 which prevents a secure tenancy from coming into existence under section 79 of the Act if it would otherwise do so.
It is, I think, convenient to begin by considering, first, when the fixed term tenancy under the long lease came to an end; and, second, by what right or interest, under the general law, the tenant continued in occupation thereafter. That is the base from which to consider whether the tenant is entitled to security of tenure or other protection under the Housing Act 1985.
As I have said, the landlord's pleaded case was that the fixed term tenancy under the long lease came to an end on 6 July 1992. The better view, I think, is that advanced in the skeleton argument prepared on behalf of the tenant for this appeal. The fixed term came to an end on or about 17 June 1982. In this Court counsel for the landlord did not seek to argue otherwise.
The phrase " the currency of the claim" in paragraph 3(1) of schedule 3 to the Leasehold Reform Act 1967 must be read with paragraph 5(1)(c) of that schedule:
"References to the currency of a claim shall be taken as references to the period from the giving of a notice which has effect or would, if valid, have effect to the time when the notice is effective or ceases to have effect, or (not being a valid notice) is set aside by the court or withdrawn or would, if valid, cease to have effect, and those references shall include any period when the notice is suspended."
In the present case Mr Banjo's solicitors wrote to the Borough on 17 March 1982 in these terms:
"We refer to your letter of the 11 th ...
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