Mr Alkali Barrow v Isabel Kazim
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Leggatt,Lord Justice Henderson |
| Judgment Date | 31 October 2018 |
| Neutral Citation | [2018] EWCA Civ 2414 |
| Docket Number | Case No: B5/2017/2928 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2018 |
[2018] EWCA Civ 2414
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Her Honour Judge Baucher
Claim No. C01EC627
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Henderson
Lord Justice Newey
and
Lord Justice Leggatt
Case No: B5/2017/2928
Mr Ben Chataway (instructed by Osbornes Solicitors LLP) for the Appellants
Mr Asela Wijeyaratne (instructed by YVA Solicitors) for the Respondents
Hearing date: 17 October 2018
Judgment Approved
“Assured shorthold tenancies” were introduced by the Housing Act 1988 (“the 1988 Act”) and are nowadays commonplace. Such a tenancy cannot be brought to an end by a landlord except by obtaining and executing an order for possession under section 7 or section 21 of the 1988 Act (see section 5(1)). Section 7 (which forms part of Chapter I of Part I) authorises (and in some instances requires) the Court to make a possession order on the various grounds set out in schedule 2 to the 1988 Act (which include, for example, the availability of suitable alternative accommodation, rent arrears and breach by the tenant of an obligation of the tenancy). Typically, however, a landlord will seek possession pursuant to section 21 rather than section 7. The former provision allows a landlord to recover possession as of right if, among other things, a notice has been served in accordance with section 21(1)(b). Section 21(1) is in these terms:
“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.”
The question in the present case is whether a notice that the respondents, who own the relevant premises, served on the appellants, who are assured shorthold tenants, satisfied the requirements of section 21(1)(b) of the 1988 Act. The respondents maintain that it did. The appellants dispute that on the basis that the respondents were not at the date of the notice “the landlord” within the meaning of section 21(1)(b).
The proceedings concern a building at 134 Holloway Road in London which contains a number of flats. From 2012, predecessors in title of the respondents leased the building to Anthea Investments Limited (“the Agency”) on the footing, as was recorded in the agreements between them, that the Agency was allowed to sub-let the premises, which were “to be used for sub-lettings as residential accommodation”. The Agency granted an assured shorthold tenancy of a flat within the building to each of the appellants. Both tenancy agreements provided for a fixed term of 28 weeks, but the appellants afterwards remained in occupation as periodic tenants in accordance with section 5(2) of the 1988 Act.
In 2015, the respondents became the registered proprietors of 134 Holloway Road, and they thereafter took steps to obtain possession of the property. To that end, on 12 January 2016 they served a document headed “Notice to quit” on the Agency and the building's occupiers stating that possession would be required on 19 March 2016. The document was intended both to determine the Agency's mesne tenancy with effect from the specified date and, as regards the sub-tenants (including the appellants), to constitute a notice under section 21(1)(b) of the 1988 Act.
It is common ground that the Agency's tenancy (which, since it did not satisfy the requirements of section 1 of the 1988 Act, was not itself an assured tenancy) was terminated with effect from 19 March 2016 and that the appellants were then tenants of the respondents. While the appellants' tenancies would have fallen with the Agency's at common law, section 18 of the 1988 Act provides for an assured tenancy lawfully granted by a mesne tenant (here, the Agency) to “continue in existence as a tenancy held of the person whose interest would, apart from the continuance of the assured tenancy, entitle him to actual possession of the dwelling-house” (here, the respondents) at the end of the mesne tenancy. Further, the notice that the respondents served on the appellants cannot, regardless of its validity, have terminated the appellants' tenancies on the date given in it. As I have indicated, an assured shorthold tenancy comes to an end under section 5 only when a possession order is executed.
Possession proceedings having been brought by the respondents, the matter came before District Judge Manners, sitting in the County Court at Clerkenwell & Shoreditch, on 21 December 2016. She made possession orders against the appellants, taking the view that “if you are the landlord of the superior tenant, you must be entitled to serve a notice to quit on the inferior tenant at the same time”. The appellants appealed, but on 6 October 2017 Her Honour Judge Baucher dismissed the appeal. She said in the course of her judgment:
“I do not consider the language of the statute requires the landlord to be the landlord at the date of the issue of the notice. The essential criterion is whether he is entitled to the premises. In accordance with section 21 that issue has to be determined by the court after the coming to an end of the assured shorthold tenancy. The wording under the statute is ‘would be entitled to possession’, and thus the relevant date is the date upon which possession is sought. On that date, 19 th March, the superior landlord was entitled to possession because the mesne tenancy had expired.”
For present purposes, the key words of section 21 of the 1988 Act are:
“a court shall make an order for possession of the dwelling-house if it is satisfied … 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”.
Taken at face value, this language might suggest that the Court should be focusing on the position at the date of the hearing and, hence, that it is good enough that the requisite notice has been given by the person who is then the “landlord”. However, Mr Asela Wijeyaratne, who appeared for the respondents, did not espouse this interpretation, and he was clearly right not to do so. The construction would make no sense and cannot have been Parliament's intention. It would imply that a notice could have been given by someone who was not the “landlord” (and might, in fact, have had no interest at all in the property) either when the notice was served or on the date specified as that on which possession was required. It would suffice that the person had become the “landlord” by the time the case was before the Court.
Mr Ben Chataway, who appeared for the appellants, submitted that the identity of the “landlord” for the purposes of section 21(1)(b) of the 1988 Act is to be determined as at the date the notice is given. That conclusion, he said, accords with the language of the section, which directs attention to what is happening on that date; with the common law rule that a notice to quit can be served only by the person in whom the reversionary interest is then vested and not, for example, by someone in whose favour a transfer of the property has been executed but who has not yet been registered as the proprietor (see e.g. Pye v Stodday Land Ltd [2016] EWHC 2454 (Ch)); and with the need for the parties to know where they stand and, in particular, whether a notice is effective.
Mr Wijeyaratne did not deny that, to be effective, a notice under section 21 of the 1988 Act must be served by the “landlord” as at the date the notice is given. His contention was rather that, in the context of the notice served on the appellants on 12 January 2016, the respondents were the “landlord” within the meaning of section 21(1)(b) at the time of service.
Mr Wijeyaratne's submissions were founded in large part on section 45 of the 1988 Act, which provides that, in Part I of the Act (which encompasses sections 1–45), except where the context otherwise requires, “landlord”:
“includes any person from time to time deriving title under the original landlord and also includes, in relation to a dwelling-house, any person other than a tenant who is, or but for the existence of an assured tenancy would be, entitled to possession of the dwelling-house”.
Very similar definitions were to be found in the Rent Act 1977 and its predecessors. The earliest such provision to which we were taken was section 12 of the Increase of Rent and...
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