Ravenseft Properties Ltd v Hall ; Ravenscroft Properties Ltd v Hall ; Kasseer v Freeman ; White v Chubb (No1)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Tuckey,Lord Phillips MR |
| Judgment Date | 19 December 2001 |
| Neutral Citation | [2001] EWCA Civ 2034 |
| Docket Number | Case No: B2/2001/0945 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2001 |
[2001] EWCA Civ 2034
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR RECORDER HETHERINGTON
BRISTOL COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Phillips Mr
Lord Justice Mummery
Lord Justice Tuckey
Case No: B2/2001/0945
For Ravenseft
Kim Lewison QC & Joanne Harris (instructed by Messrs Bindman & Partners for the Appellant)
John Male QC (instructed by Messrs Nabarro Nathanson & Co for the Respondent)
For White
Mr G Jones QC (instructed by Bradford & Co for the Appellant)
Mr P Morgan QC & Mr S Cottle (instructed by Bobbetts Mackan for the Respondent)
For Kasseer
Mr P Morgan QC & Mr K Farrelly (instructed by HCC Hann & Co for the Appellant)
Mr T M Farncourt (instructed by Triggs Wilkinson Mann for the Respondent)
Introduction
This is a judgment on three different appeals raising a common question. Each appeal concerns the validity of a notice served by a landlord on a tenant under section 20 of the Housing Act 1988 (the 1988 Act). In each case the tenant contends that the notice is invalid because it is not, in one or more respects, in the form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations SI No 2203 (the Regulations) made under the 1988 Act, or in a form substantially to the same effect.
If, despite departure from the prescribed form, the notice is valid, the tenancy in question was an assured shorthold tenancy and the landlord was entitled to an order for possession. If, however, departure from the prescribed form makes the notice invalid, the tenancy is an assured tenancy and the landlord is not entitled to a possession order in the current proceedings.
The first appeal to be heard was Ravenseft Properties Limited v. Hall (the Ravenseft Appeal). That is an appeal by a tenant against a ruling of HHJ Cooke in the Central London County Court on 4 April 2001 that the notice was valid, even though it contained an error as to the start date of the tenancy. The hearing of the appeal took place in London on 19 October 2001. Shortly before the hearing the Civil Appeals Office discovered that another appeal raising the same point on different facts ( Chubb v. White) (the White Appeal) was fixed for hearing before a differently constituted Court of Appeal sitting in Exeter on 30 October 2001. The White Appeal was brought by a landlord against a ruling of Mr Recorder Hetherington in the Bristol County Court on 30 March 2001 that a notice served by the landlord was invalid as it mistakenly stated the end date of the tenancy as one month later than the correct date. During the course of the hearing of the Ravenseft Appeal Mr Kim Lewison QC, leading counsel for the tenant, informed the court that there was also pending a third appeal ( Freeman v. Kasseer) (the Kasseer Appeal) in which he was instructed by the tenant and in which he was advancing similar arguments. The Kasseer Appeal was by the tenant against a ruling of HHJ Winstanley in the Wandsworth County Court on 17 July 2001 that a section 20 notice was valid, even though parts of the textual matter in it departed from the language and meaning of the prescribed form.
Arrangements were accordingly made for the Court of Appeal sitting in Exeter to hear the White Appeal and the Kasseer Appeal on the same day. Judgment had already been reserved in the Ravenseft Appeal. Judgment was then reserved in the two other appeals.
The Statutory Provisions
The material parts of section 20 of the 1988 Act, which continue to apply to pre-Housing Act 1996 assured shorthold tenancies, provided as follows:—
"(1) Subject to subsection (3) below, an assured tenancy…is an assured shorthold tenancy if—
(a) it is a fixed term tenancy granted for a term certain of not less than six months,
(b) there is no power for the landlord to determine the tenancy at any time earlier than six months from the beginning of the tenancy, and
(c) a notice in respect of it is served as mentioned in subsection (2) below.
(2) 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."
The effect of the Housing Act 1996 was to remove the notice requirements for the creation of assured shorthold tenancies after 28 February 1997. All the tenancies affected by these appeals were created before that date.
Section 45 (1) of the 1988 Act defined "prescribed" as meaning
"prescribed by regulations made by the Secretary of State by statutory instrument."
The Regulations were made in 1988. Drafting and consequential amendments to the Regulations were made in 1990 and 1993, but the amendments are not material to these appeals. Regulation 2 provided that
"In these Regulations any reference to a section is to a section of the Housing Act 1988 and any reference to a numbered form is a reference to the form bearing that number in the Schedule to these Regulations, or to a form substantially to the same effect."
Under Regulation 3(7) the form prescribed for a notice under section 20 of an intention to grant an assured shorthold tenancy was form no.7, a copy of which is Annex 1 to this judgment.
It is worth noting the more significant features of the prescribed form before consideration of the authorities on the interpretation of section 20 and the Regulations and of the respects in which the particular notices actually given in the three cases under appeal deviated from the prescribed form.
(i) The notice must be given before the person proposing to take a tenancy agrees to the tenancy, it being expressly stated that the notice does not commit the tenant to take the tenancy.
(ii) Although no particular length of time between the giving of the notice and entering into the tenancy is specified, it is contemplated that the recipient of the notice will have an opportunity to take advice, including legal advice.
(iii) The notice contains only selective information about the proposed tenancy: the name of the proposed tenant, the name and address of the landlord, the address of the premises to be let and the start and end dates of the tenancy, which must be for a term certain of at least six months. Other important information about the terms of the proposed tenancy does not have to be stated in the notice. For example, the amount of the rent is not required to be stated. All that is said about the rent is that it is "the rent we have agreed", coupled with an explanation of the right to apply to the rent assessment committee for a determination of the rent for the tenancy. So, the notice is not intended either to serve as a record of the tenancy agreement or to be a substitute for such an tenancy agreement. It is contemplated by the notice that there will be a subsequent document.
(iv) The purpose of giving the notice is clearly stated in paragraph 2 and is in accordance with section 20 (2) (d) of the 1988 Act:
"This notice is to tell you that your tenancy is to be an assured shorthold tenancy…"
Shorthold is a special kind of tenancy, as the paragraph goes on to explain: the tenant has security for the first six months of the fixed period agreed at the start of the tenancy, but, depending on the terms of the tenancy, the landlord may have the right to repossession if he wants at the end of that six months period.
(v) The Regulations expressly contemplate that deviations from the prescribed form do not necessarily invalidate a notice. Errors and omissions are expressly catered for by the provision in Regulation 2 that a reference to a form is a reference not only to the prescribed form but also includes a form "substantially to the same effect."
The Authorities
On all three appeals counsel cited decisions of this court on section 20 and the Regulations. They carefully analysed the facts of them, highlighting similarities and differences according to the use which they wished to make of them as binding precedents. The court was referred to Panayi v. Roberts [1993] 2 EGLR 51; Andrews v. Brewer (1997) 30 HLR; York v. Casey [1998] 2 EGLR 25; Clickex Ltd v. McCann [1999] 2 EGLR 63; and Manel v. Memon [2000] 2 EGLR 40. In my judgment, however, a detailed analysis of each decision is not a profitable exercise: the question whether a notice under section 20 is in the prescribed form or is in a form "substantially to the same effect" is a question of fact and degree in each case, turning on a comparison between the prescribed form in Annex 1 and the particular form of notice given. The resolution of that question is not decision on a point of law which is binding on later courts. The value of the authorities is in illustrating the general approach of the court to the issue of the validity of a notice under attack for its errors or omissions.
There are two general statements steering the courts to a consistent approach :
(i) Purposive Approach
In Manel v. Memon Nourse LJ posed these questions at p.42:
"What, then, is the substance of a notice under section 20? Its essential purpose is to tell the proposed tenant that the tenancy is to be an assured shorthold tenancy, with the consequences specified in paras 2 and 3 of the Form 7, in particular that "the landlord may have the right to...
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