Lynch v Kirby
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE NICOLA DAVIES |
| Judgment Date | 28 January 2010 |
| Neutral Citation | [2010] EWHC 297 (QB) |
| Date | 28 January 2010 |
| Court | Queen's Bench Division |
| Docket Number | CC/2009/PTA/0573 |
[2010] EWHC 297 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mrs Justice Nicola Davies
CC/2009/PTA/0573
MR NICOL appeared on behalf of the Applicant.
MR EATON appeared on behalf of the Respondent.
: This is an appeal by the appellant, Martin Lynch, against an order for possession made by His Honour Judge Matheson QC on 17 th September 2009 in respect of the appellant's occupation of Room 4, 109 Upper Tullington Park, London N4.
The appeal is brought on two grounds.
The learned judge misdirected himself in law in finding that the appellant was not granted an assured tenancy of Room 5 of 109 Upper Tollington Park from 20th February 1997.
The learned judge misdirected himself in law by holding that the appellant's tenancy of Room 5 did not commence until after 27th February 1997. The judge failed to have regard to the definition of “a tenancy” contained within section 45 of the Housing Act 1988.
The facts
The respondent is the freehold owner of 109 Upper Tollington Park. The respondent lets out rooms in the property. It is not in dispute that the appellant moved into Room 5 of 109 Upper Tollington Park on 20 th February 1997 and thereafter enjoyed exclusive occupation of the room. A year later the appellant moved from Room 5 in the property to Room 4. The judge made the following findings of fact:—
(a) The appellant entered into exclusive possession of Room 5 from 20 th February 1997.
(b) On that date the appellant and the respondent completed and signed a pre-tenancy determination form.
(c) The judge found that the respondent did not intend to accept the appellant as a tenant unless he was awarded housing benefit. The respondent permitted the appellant to take up occupation in the property until such time as his housing benefit was approved, because he was aware that the appellant had friends in the property.
The findings of fact made by the judge represented uncontested evidence given by the parties. Evidentially, there were few areas of factual dispute. The central factor issue was when the intention to create legal relations arose. It was not contested that, on 20 th February 1997, the appellant submitted a claim for housing benefit. The appellant gave oral evidence. He produced a document from Haringey Council which included the information that the claimant had submitted a form for housing benefit on 20 th February 1997 and his entitlement to benefits commenced on 24 th February 1997.
Submissions before His Honour Judge Matheson QC
It was the appellant's case that he became an assured tenant of Room 5 on 20 th February 1997 by reason of paragraph 7 Schedule 2A of the Housing Act 1988. On behalf of the appellant, it was contended that it was standard practice for tenants to move into possession of premises and then claim housing benefit. The appellant submitted that the intention to create legal relations arose on 20 th February 1997 when he was granted exclusive possession of Room 5 and a pre-tenancy determination was signed by both parties.
It was the respondent's case that the appellant had been granted a bare licence of Room 5 pending a determination by the local authority of the appellant's entitlement to housing benefit. The respondent alleged that any agreement entered into by the parties took place on or after 7 th March 1997. Further, it was contended on behalf of the respondent that there was no intention to create legal relations until housing benefit was awarded. The learned judge held:
(a) the tenancy was not granted until the respondent told the appellant that housing benefit had come through;
(b) before that time the appellant had exclusive possession as a licensee pending determination of his housing benefit claim;
(c) the tenancy of Room 5 did not commence until after 27 th February 1997:
(d) prior to receipt of housing benefit it was on an entirely conditional and almost charitable basis that occupation by the appellant was permitted by the respondent. Such backdated housing benefit as may have been made had to be treated “not as being rent gap but as mesne profits for use and occupation of the property”.
The law. Statute.
The Housing Act 1996 came into force on 28 th February 1997, amending the Housing Act 1988. The Housing Act 1996 made all assured tenancies granted after its commencement assured shorthold tenancies save where a notice was served in advance notifying the tenant that it was to be an assured tenancy. This general rule was subject to exceptions, including that an assured tenancy created after 28 th February 1997, which replaced a tenancy between the same parties which was not an assured shorthold tenancy, is an assured tenancy. The importance of the distinction between the two types of tenancies is that, in the case of an assured tenancy, possession can only be obtained on the grounds specified in Schedule 2 to the Housing Act 1988 – see sections 5(2) and (7), or, as in the case of an assured shorthold tenancy, security of tenure is more limited, possession may be obtained on service of a notice which complies with section 21 of the Housing Act 1988. A section 21 notice was served in this case.
Section 1(1) of the Housing Act 1988 provides that a tenancy of a dwelling house is an assured tenancy if and so long as the tenant is an individual and occupies the property as his only or principal home and it is not an excluded tenancy.
The tenancy in section 1 includes an agreement for a tenancy – section 45 of the Housing Act 1988, the interpretation section of Part 1 of the Housing Act 1988.
An assured periodic tenancy cannot be brought to an end by a landlord except by obtaining an order in accordance with the provisions of Chapter 1 or 2 or the Housing Act 1988. Accordingly, the service by the landlord of notice to quit has no effect in relation to a periodic assured tenancy – section 5(1) of the Housing Act 1988. The court has no jurisdiction to hear proceedings for possession of a property let on an assured tenancy unless notice has been served which complies with section 8 of the Housing Act 1988, or it is just and equitable to dispense with such a notice – section 8(1) of the Housing Act 1988.
Prior to the commencement of the Housing Act 1996, if a residential tenancy was to be an assured shorthold tenancy, it had to be (a) a grant of a tenancy for a fixed term of not more than six months; (b) a section 20 notice...
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