Harrison v Hammersmith and Fulham London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,LORD JUSTICE BRANDON,SIR DAVID CAIRNS |
| Judgment Date | 21 January 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0121-6 |
| Docket Number | 81/0054 |
| Date | 21 January 1981 |
| Court | Court of Appeal (Civil Division) |
[1981] EWCA Civ J0121-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Lord Justice Waller
Lord Justice Brandon
Sir David Cairns
81/0054
MR E.A.L. BANO, instructed by Hammersmith & Fulham Law Centre, appeared for the Appellant Harrison.
MR C.P.L. BRAHAM, instructed by The Solicitor, Borough of Hammersmith, appeared for the Respondents The London Borough of Hammersmith and Fulham.
MR SIMON GOLDBLATT, Q.C., and Miss A.M. WORRALL, instructed by The Solicitor, London Borough of Haringey, appeared for the Appellants the London Borough of Haringey.
MR ANDREW ARDEN, instructed by Tottenham Law Centre, appeared for the Respondent Mosner.
MR ANDREW ARDEN, instructed by Hackney Law Centre, appeared for the Appellant Watson.
MR SIMON GOLDBLATT, Q.C., and MISS A.M. WORRALL, instructed by The Solicitor, London Borough of Hackney, appeared for the Respondents the London Borough of Hackney.
I will ask Lord Justice Brandon to give the first Judgment of the Court.
The Court has before it three appeals from the decisions of three different County Court Judges in possession actions brought by local authority landlords against persons who were in any case formerly, and claim still to be, council tenants. The three appeals raise the same question on the construction of those provisions of the Housing Act 1980 ("the 1980 Act") which relate to security of tenure for public sector tenants and have accordingly been heard together.
Taking the actions in the order in which they were begun, the first action is one brought by the London Borough of Hammersmith and Fulham as Plaintiff against George Harrison as Defendant in respect of a flat known as Hall Floor, 81 Brackenbury Road, Hammersmith, London S.W.6. The flat had been let by the Plaintiff to the Defendant on the 28th June 1976 on a weekly tenancy and the current rent for it was £11.66. On the 23rd June 1980 the Plaintiff served on the Defendant notice to quit the flat on the 21st July 1980. The Defendant did not comply with the notice and on the 5th August 1980 the Plaintiff began an action in the West London County Court to recover possession of the flat. On the 13th October, 1980 His Honour Judge Stuckley gave judgment for the Plaintiff, ordering the Defendant to give up possession on the 10th November 1980. By notice of appeal dated the 30th October 1980 the Defendant appealed against that decision.
The second action is one brought by the Mayor and Burgesses of the London Borough of Haringey as Plaintiffs against Ellen Mosner as Defendant in respect of a flat known as 206 The Sandlings, Pelham Road, London N.22. The flat had been let by the Plaintiffs to the Defendant on the 9th April 1979 and the current rent for it was £13.88. On the 7th June 1980 the Plaintiffs served on the Defendant notice to quit the flat on the 7th July 1980. The Defendant did not comply with that notice and on the 29th August 1980 the Plaintiff began an action in the Edmonton County Court to recover possession of the flat. On the 28th October 1980 His Honour Judge Tibber dismissed the action. By notice of appeal dated the 21st November 1980 the Plaintiffs appealed against that decision.
The third action is one brought by the Mayor and Burgesses of the London Borough of Hackney as Plaintiffs against Jennie Watson as Defendant in respect of a flat known as 50 Corbiere House, Balnes Road, London N.1. The flat had been let by the Plaintiffs to the Defendant on a weekly tenancy and the current rent payable for it was £19.08. On the 5th June 1980 the Plaintiffs served on the Defendant notice to quit the flat on the 7th July 1980. The Defendant did not comply with the notice and on the 12th September 1980 the Plaintiffs began an action in the Shoreditch County Court to recover possession of the flat. On the 15th October 1980 His Honour Judge Willis tried, as a preliminary issue in the action, whether, having regard to the provisions of the 1980 Act, the Particulars of Claim disclosed any cause of action, and decided that issue in favour of the Plaintiffs, giving leave to appeal. By notice of appeal dated the 21st October 1980 the Defendant appealed against that decision.
The 1980 Act was passed on the 8th August 1980. The provisions relating to security of tenure for public sector tenants are contained in Chapter II of Part I of the Act. Section 153, sub-section (2) provided that Chapter II of Part I should come into operation on such day as the Secretary of State might by order appoint or, if no such order should have been made, on the expiry of the period of eight weeks beginning with the day on which the Act was passed. No order was made by the Secretary of State for the coming into operation of Chapter II of Part I, and that Chapter accordingly came into operation eight weeks after the passing of the Act, that is to say on the 3rd October 1980.
The question of law raised by the three appeals can therefore be formulated as follows. Where a local authority landlord has (a) brought a tenant's periodic tenancy to an end by service and expiry of a valid notice to quit, and (b) subsequently begun, but not yet obtained judgment in, a possession action against the tenant, all before the 3rd October 1980, when the provisions of the 1980 Act relating to security of tenure for public sector tenants came into operation, can the tenant rely on those provisions as a defence to the action?
In the three cases now on appeal before us, two of the County Court Judges concerned have answered that question of law in the negative, while the third has answered it in the affirmative.
The sections of Chapter II of Part I of the 1980 Act relating to security of tenure for public sector tenants provide, so far as material, as follows:
"Section 28(1)—A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described below as the landlord condition and the tenant condition are satisfied…….
(2)—The landlord condition is that—
(a) the interest of the landlord belongs to one of the bodies mentioned in sub-section (4) below;
..……
(3) The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home……..
(4) The bodies referred to in sub-section 2 (a) above are:-
(a) a local authority;
..……
"Section 29. (1) Where a secure tenancy (in this section referred to as "the first tenancy") is a tenancy for a term certain and comes to an end by effluxion of time or by an order under section 32 (2) below, a periodic tenancy of the same dwelling house arises by virtue of this section unless the tenant is granted another secure tenancy of the same dwelling-house (whether a tenancy for a term certain or a periodic tenancy) to begin on the coming to an end of the first tenancy.
(2) Where a periodic tenancy arises by virtue of this section—
(a) the periods of that tenancy are the same as those for which rent was last payable under the first tenancy; and
(b) the parties and terms of the tenancy are the same as those of the first tenancy at the end of it;
except that the terms are confined to those which are compatible with a periodic tenancy and do not include any provision for re-entry or forfeiture.
"Section 32. (1) A secure tenancy which is either—
(a) a weekly or other periodic tenancy; or
(b) a tenancy for a term certain but subject to termination by the landlord;
cannot be brought to an end by the landlord except by obtaining an order of the court for the possession of the dwelling-house or an order under sub-section (2) below; and where the landlord obtains an order for the possession of the dwelling-house the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order.
(2) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision; but in any case where, but for this section, the court would have made such an order, it shall instead make an order terminating the secure tenancy on a date specified in the order.
(3) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture)…….., and any other enactment or rule of law relating to forfeiture shall apply in proceedings for an order under sub-section (2) above as if they were proceedings to enforce a right of re-entry or forfeiture.
"Section 33. (1) The Court shall not entertain proceedings for the possession of a dwelling-house let under a secure tenancy, unless the landlord has served on the tenant a notice complying with the provisions of this section and, if the tenancy is a periodic tenancy—
(a) the proceedings are begun after the date specified in the notice; and
(b) the notice is still in force at the time the proceedings are begun.
(2) A notice under this section must be in a form prescribed by regulations made by the Secretary of State and must specify the ground on which the court will be asked to make an order for the possession of the dwelling-house or for the termination of the tenancy and give particulars of that ground.
(3) If the secure tenancy is a periodic tenancy the notice—
(a) must also specify a date after which proceedings for the possession of the dwelling-house may be begun; and
(b) ceases to be in force twelve months after the date specified in it;
and the date specified in it must not be earlier than...
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