Christopher Mooney v Karen Victoria Whiteland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Lord Justice Snowden,Lady Justice Thirlwall |
| Judgment Date | 01 February 2023 |
| Neutral Citation | [2023] EWCA Civ 67 |
| Docket Number | Case No: CA-2022-001110 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 67
Lady Justice Thirwall
Lord Justice Males
and
Lord Justice Snowden
Case No: CA-2022-001110
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF COUNTY COURT
His Honour Judge Beard
Case G2PP3472
Royal Courts of Justice
Strand, London, WC2A 2LL
Forz Khan (instructed by Direct Access) for the Appellant
Catherine Collins (instructed by Llys Cennen Solicitors) for the Respondent
Hearing date: 24 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Wednesday 1 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This appeal is concerned with the validity of a notice to increase the rent payable under a periodic tenancy which was sent by the appellant landlord, Mr Christopher Mooney, pursuant to section 13 of the Housing Act 1988.
The tenancy was a week to week tenancy which commenced on Monday 20 th May 1991. So the rent fell due every Monday. However the practice of the respondent tenant, Miss Victoria Whiteland, was to pay the rent on the preceding Friday of each week, in order to ensure that it was received by the landlord in time.
Section 13 requires that a notice to increase the rent must propose “a new rent to take effect at the beginning of a new period of the tenancy specified in the notice”. As each new period of the tenancy began on a Monday, a notice compliant with section 13 would need to propose that the new rent should take effect on a Monday. However, the notice which Mr Mooney sent stated that the new rent should take effect from Friday 7 th December 2018, rather than from Monday 10 th December 2018.
This has given rise to a difference of view in the courts below as to the validity of the notice. Deputy District Judge Evans, sitting in the County Court at Swansea, held that the notice was valid: it had to be seen against the background of the tenant's practice of paying the rent on a Friday and was effective to increase the rent from Friday 7 th December when the tenant would be paying the rent anyway; the tenant's objection to the notice was entirely technical as the notice was clear. On appeal, His Honour Judge Beard sitting in Cardiff held that the notice was invalid. Although one interpretation of the notice was that the increased rent was intended to take effect from Monday 10 th December, which was the beginning of a new period of the tenancy, that was not the only interpretation and the position would not have been clear to a reasonable recipient of the notice.
Mr Mooney now appeals to this court, contending that the notice was valid and effective to increase the rent from £25 to £100 per week. He contends also that it is too late for Miss Whiteland to challenge the validity of the notice as she did not refer the matter to a rent assessment committee.
Background
The issue arises in the context of proceedings by the landlord for possession of the property. If the notice was effective to increase the rent, there are substantial arrears. Accordingly the validity of the notice was ordered to be determined as a preliminary issue.
The dealings between the parties have been complex, but the facts which are relevant for the purpose of this appeal can be shortly stated. I think it preferable to say nothing about other matters which are or may be in dispute between them and which are not relevant to what we have to decide.
On Monday 20 th May 1991 the property, a cottage called Graigina at Llanbydder in Carmarthenshire, was let to Miss Whiteland at a weekly rent of £25. The rent book provided to her confirmed the start date of the tenancy and stated that the rent was payable on the Monday of each week. However, Miss Whiteland usually paid the rent on the preceding Friday, although it appears that there was a period during which, by agreement with the then landlords, no rent was paid and Miss Whiteland lived in the property rent-free while providing care for them. However, rental payments resumed in 2001.
In October 2018 Mr Mooney, who had acquired the property in August 2017, served a notice proposing an increase in the rent to £100 per week. It appears that an earlier notice was also served in September 2017, and that there had been disputes between the parties, but we are not concerned with those disputes, while proceedings for possession based on the earlier notice were dismissed for reasons which do not affect this appeal.
Miss Whiteland did not accept the validity of this notice. She maintained that she had been told by a previous landlord that the rent would be £25 per week for as long as she lived at the property. She did not refer the matter to the local rent assessment committee, but continued to pay rent at the rate of £25 per week.
Mr Mooney therefore issued proceedings for possession, including on the ground that an order should be made by reason of substantial arrears of rent. It was in those circumstances that the trial of a preliminary issue was ordered to determine the validity of the October 2018 notice.
The legislative provisions
Section 13 of the Housing Act 1988
Section 13 of the Housing Act 1988 provides as follows:
“ 13 Increases of rent under assured periodic tenancies
(1) This section applies to–
(a) a statutory periodic tenancy other than one which, by virtue of paragraph 11 or paragraph 12 in Part I of Schedule 1 to this Act, cannot for the time being be an assured tenancy; and
(b) any other periodic tenancy which is an assured tenancy, other than one in relation to which there is a provision, for the time being binding on the tenant, under which the rent for a particular period of the tenancy will or may be greater than the rent for an earlier period.
(2) For the purpose of securing an increase in the rent under a tenancy to which this section applies, the landlord may serve on the tenant a notice in the prescribed form proposing a new rent to take effect at the beginning of a new period of the tenancy specified in the notice, being a period beginning not earlier than–
(a) the minimum period after the date of the service of the notice; and
(b) except in the case of a statutory periodic tenancy, the first anniversary of the date on which the first period of the tenancy began; and
(c) if the rent under the tenancy has previously been increased by virtue of a notice under this subsection or a determination under section 14 below, the first anniversary of the date on which the increased rent took effect.
(3) The minimum period referred to in subsection (2) above is–
(a) in the case of a yearly tenancy, six months;
(b) in the case of a tenancy where the period is less than a month, one month; and
(c) in any other case, a period equal to the period of the tenancy.
(4) Where a notice is served under subsection (2) above, a new rent specified in the notice shall take effect as mentioned in the notice unless, before the beginning of the new period specified in the notice,–
(a) the tenant by an application in the prescribed form refers the notice to a rent assessment committee; or
(b) the landlord and the tenant agree on a variation of the rent which is different from that proposed in the notice or agree that the rent should not be varied.
(5) Nothing in this section (or in section 14 below) affects the right of the landlord and the tenant under an assured tenancy to vary by agreement any term of the tenancy (including a term relating to rent).”
It is not disputed that the tenancy in this case is one to which section 13 applies.
Subsection (2) provides that the notice must be in the prescribed form. In the case of a property in Wales, the form for a notice under section 13 is prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 (SI 1997/194) as amended by the Assured Tenancies and Agricultural Occupancies (Forms) (Amendment) (Wales) Regulations 2003 (SI 2003/307(W)) and the Assured Tenancies and Agricultural Occupancies (Forms) (Amendment) (Wales) Regulations 2014 (SI 2014/374(W)). However, the Regulations also permit the use of a form “substantially to the same effect” as the form prescribed.
In the present case the landlord did use the prescribed form, form 4D. Accordingly no question arises whether the form used was “substantially to the same effect” as form 4D.
It is apparent from the terms of section 13 that a notice must comply with three requirements. First, it must specify a minimum period after service of the notice before it takes effect. In the present case of a weekly tenancy which had been running for many years, the minimum period was one week (subsections (2)(a) and (3)(c)). The notice here was served on 29 th October 2018 and therefore gave considerably more than the minimum period of notice required.
Second, the section contains provisions to ensure that increases cannot take place more frequently than once a year (subsection (2)(c)). In the present case there had been no increase in the rent since the tenancy's inception in 1991.
Finally, and significantly in the present case, the notice must “take effect at the beginning of a new period of the tenancy specified in the notice”. Thus, for a weekly tenancy beginning on a Monday, the notice must specify a Monday as the date from which the new rent will take effect.
The date from which the new rent will take effect is therefore of critical importance to the validity of a section 13 notice. The date specified will enable the tenant to understand whether these statutory requirements have been complied with and, if so, will leave no room for doubt about the date from which the new rent will be payable. But it also serves another important purpose, which is to specify the...
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