Captain Nigel Crighton Pease v Jeffrey William Carter
| Jurisdiction | England & Wales |
| Judge | Lord Justice Arnold,Underhill LJ,Floyd LJ |
| Judgment Date | 17 February 2020 |
| Neutral Citation | [2020] EWCA Civ 175 |
| Date | 17 February 2020 |
| Docket Number | Case No: B5/2019/2470 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 175
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division)
Lord Justice Floyd
and
Lord Justice Arnold
Case No: B5/2019/2470
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT MIDDLESBROUGH
HHJ Gargan
Royal Courts of Justice
Strand, London, WC2A 2LL
Alice Richardson (instructed by Tilley Bailey & Irvine LLP) for the Appellant
Christopher Maynard (instructed through Advocate) for the Respondents
Hearing date: 5 February 2020
Approved Judgment
Introduction
In this case the Appellant (“the Landlord”) served notices of proceedings for possession under section 8 of the Housing Act 1988 (“the Notices”) on the Respondents (“the Tenants”) on 7 November 2018. The Notices stated that the court proceedings would not begin until after “26 November 2017”. His Honour Judge Gargan sitting in the County Court at Middlesbrough held that this was an obvious typographical error, and that the reasonable recipient of the Notices would have realised that the intended date was 26 November 2018. He nevertheless held that the error in the date meant that the Notices were invalid. The Landlord contends that he was wrong so to hold. Patten LJ granted permission for what is technically, although not in substance, a second appeal because the appeal raises an important point of principle concerning notices under section 8 of the 1988 Act. As will appear, the position is complicated by two previous decisions of this Court concerning section 21 of the 1988 Act. In those circumstances I should express the Court's gratitude for the assistance we received from counsel for the Tenants (who did not appear below) acting pro bono and at short notice through Advocate.
Background
The Landlord granted the Tenants an assured shorthold tenancy of Ivy House, Streatlam, Barnard Castle DL12 8TZ on 1 August 2007 for a period of six months. After the expiry of the six-month term, the tenancy continued as a statutory periodic assured shorthold tenancy. The rent was £800 per month, subsequently reduced to £500 per month on 23 March 2017. The Landlord contends that the Tenants have failed to pay the rent since April 2018, save for one payment in February 2019. As stated above, the Landlord served the Notices on 7 November 2018. The Landlord contends that the rent arrears at that stage were £3,538.44. On 27 December 2018 the Landlord issued possession proceedings in the County Court. At a first hearing on 30 January 2019 District Judge Adams raised of his own motion the error in the date stated in the Notices. Having heard argument, he made an order giving the Landlord permission to amend the date on the Notices and dispensing with re-service. The Tenants appealed on the ground that the District Judge had had no power to permit the Landlord to amend the Notices. The Landlord accepted this, but contended that the Notices were valid despite the error in the date. These proceedings form part of a wider dispute between the parties, but it is unnecessary to go into that for present purposes.
The Notices
The Notices were identical save that one was addressed to one Tenant and the other to the other Tenant. The Notices were based on a standard form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015, SI 2015/620, namely Form No. 3.
Section 3 of the Notices stated (so far as relevant for present purposes):
“Your landlord intends to seek possession on grounds 8, 10 and 11 in Schedule 2 to the Housing Act 1988 (as amended), which read(s):
8. Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing –
…
(b) if rent is payable monthly, at least two months rent is unpaid;
…
10. Some rent lawfully due from the tenant –
(a) is unpaid on the date on which the proceedings for possession are begun; and
(b) except where subsection (1)(b) of section 8 of this Act applies, was in arrears at the date of the service of the notice under that section relating to those proceedings.
…”
Section 4 set out details of the rent arrears relied on by the Landlord.
Section 5 stated: “The court proceedings will not begin until after: 26 November 2017”. Section 5 also included notes which stated (so far as relevant):
“NOTES ON THE EARLIEST DATE ON WHICH THE COURT PROCEEDINGS CAN BE BROUGHT
…
Where the landlord is seeking possession on grounds … 8, 10 to 13 … court proceedings cannot begin earlier than 2 weeks from the date this notice is served. ….
…
After the date shown in section 5, court proceedings may be begun at once but not later than 12 months from the date on which this notice is served. After this time the notice will lapse and a new notice must be served before possession can be sought.”
Section 6 set out the name and address of the Landlord. Each Notice was signed by the Landlord's solicitors (acting as his agent) and dated “7/11/18”.
The statutory provisions
Section 8 of the 1988 Act, which forms part of Chapter I of Part I of the Act, concerns proceedings by landlords for possession of properties let on assured tenancies on one of the grounds specified in Schedule 2 to the Act. Those grounds include ground 8 (a mandatory ground) and grounds 10 and 11 (two discretionary grounds) relating to the non-payment of rent. Section 8 provides (as amended and so far as relevant):
“ Notice of proceedings for possession.
(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless—
(a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice in accordance with subsections (3) to (4B) below; or
(b) the court considers it just and equitable to dispense with the requirement of such a notice.
(2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section; but the grounds specified in such a notice may be altered or added to with the leave of the court.
(3) A notice under this section is one in the prescribed form informing the tenant that—
(a) the landlord intends to begin proceedings for possession of the dwelling-house on one or more of the grounds specified in the notice; and
(b) those proceedings will not begin earlier than a date specified in the notice in accordance with subsections (3A) to (4B) below; and
(c) those proceedings will not begin later than twelve months from the date of service of the notice.
…
(4B) In any other case, the date specified in the notice as mentioned in subsection (3)(b) above shall not be earlier than the expiry of the period of two weeks from the date of the service of the notice.
…
(5) The court may not exercise the power conferred by subsection (1)(b) above if the landlord seeks to recover possession on Ground … 8 in Schedule 2 to this Act.
…”
Section 20 of the 1988 Act, which forms part of Chapter II of Part I of the Act, provides that an assured tenancy which is not one to which section 19A applies (i.e. it is an assured tenancy created before the Housing Act 1996 came into force) is an assured shorthold tenancy (and thus a tenancy which affords the tenant lesser security of tenure) if certain conditions are satisfied. Section 20(1)(c) requires service of a notice which complies with section 20(2). Section 20(2) provides:
“The notice referred to in subsection (1)(c) above is one which—
(a) is in such form as may be prescribed;
(b) is served before the assured tenancy is entered into;
(c) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy; and
(d) states that the assured tenancy to which it relates is to be a shorthold tenancy.”
Section 21 of the 1988 Act, which is also in Chapter II of Part I, enables a landlord to obtain possession of property at the end of an assured shorthold tenancy without establishing any of the grounds specified in Schedule 2 to the Act. It provides (as amended and so far as relevant):
“ Recovery of possession on expiry or termination of assured shorthold tenancy.
(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling-house.
…
(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date...
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