The Mayor and Burgesses of the London Borough of Enfield (Respondent Plaintiffs) v David Devonish (First Defendant) Myra Sutton (Second Defendant/Appellant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HIRST,LORD JUSTICE PHILLIPS |
| Judgment Date | 25 January 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0125-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | LTA 95/7414/G |
| Date | 25 January 1996 |
[1996] EWCA Civ J0125-6
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EDMONTON COUNTY COURT
(His Honour Justice Tibber)
Before: Lord Justice Hirst and Lord Justice Phillips
LTA 95/7414/G
MR J LUBA (instructed by Messrs J.D. Spicer & Co., London N9) appeared on behalf of the Second Defendant/Appellant
MR B McGUIRE (instructed by The London Borough of Enfield Legal Dept) appeared on behalf of the Respondent Plaintiffs
Thursday, 25th January, 1996
The plaintiffs, who are a local housing authority, brought these proceedings to recover possession of residential premises at 118 Grampian House, the North Mall, Edmonton, London N9. The first defendant has never responded to the proceedings which were, however, contested by the second defendant. It is common ground between the parties that in 1988 the first defendant was living at the premises under a secure tenancy. At some point thereafter the second defendant moved in to live there with him.
In August 1991 the plaintiff obtained a possession order against the first defendant on the basis of rent arrears. Thereafter the plaintiff agreed not to enforce that order if the first defendant made instalment payments to clear these arrears.
It is common ground that on the basis of the Court of Appeal decision in Burrows v London Borough of Brent 27 HLR 748, this operated as the grant of a fresh tenancy.
In 1994 the plaintiff discovered that the first defendant was no longer living at the premises and had, therefore, lost the protection of the Housing Act 1985, in that although a contractual tenancy subsisted it was no longer secure and could be determined by notice to quit. The plaintiffs were unaware of the first defendant's whereabouts and served a notice to quit addressed to him at the premises.
Thereafter they issued possession proceedings against both defendants.
In due course, in the Edmonton County Court, on 6 November 1995, Judge Tibber ordered that the present appellant, Myra Sutton, who was the second defendant in the case, should deliver up possession of the premises to which I have just referred. It is that decision against which leave to appeal is now sought.
The learned judge based his decision on two grounds. He recognised that in the normal course of events, as is common ground, a plaintiff who seeks to rely on a notice to quit must prove that it came to the attention of the tenant.
However, there are statutory exceptions to this rule. First of all, section 196 of the Law of Property Act 1925, and, secondly, section 233 of the Local Government Act 1972. The learned judge held that both these sections applied.
I deal first with section 196 of the 1925 Act, which is headed "Regulations respecting notices".
Subsection 5 reads:
"The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears."
The learned judge held that that subsection was satisfied by reason of a provision in the original 1978 tenancy agreement which provided that:
"The tenancy may be ended by the tenant giving to the housing manager not less than four weeks' written notice expiring on any Monday or by the council giving similar notice to the tenant."
The problem here is that the judge referred to that as being a "term" of the tenancy, although, as already mentioned, that tenancy had in fact come to an end by operation of law as a result of the doctrine laid down in the Burrows case. The fresh tenancy granted was in the form of a very short document dated 30 August 1981, headed "Statement of Intent to Repay Arrears of Rent", which simply read:
"I agree to repay my debt to the council at the rate of £65 a week. The amount includes the current rental at £8.87 each week to reduce the debt. The first payment will be due on 2nd September 1991 …",
and then the amount owing at the relevant date is agreed at £1,396.89.
On behalf of the applicant Mr Luba submits that the learned judge never concentrated on that replacement document at...
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