Residential tenancies

Citation

(1999), "Residential tenancies", Property Management, Vol. 17 No. 4. https://doi.org/10.1108/pm.1999.11317dab.005

Residential tenancies

Clickex Ltd v. McCann [1999] 30 EG 96

This case was concerned with the question of the validity or otherwise of a notice under s.20 of the Housing Act 1988 as it applied to a tenancy commencing before the Housing Act 1996 negated the need for such notices to be served on the prospective tenant.

In this case, unfortunately for the landlord, the notice served under s.20 referred to the tenancy being for a term "from 21 Dec [for December] 1995 to 23 June 1996" and the s.20 tenancy agreement as originally drawn referred to "a term certain of six [months] from the Commencement Date", which latter date was specified as being "21.12.1995". However, the possibility of confusion arising as to the termination date of the tenancy on this account was not the real problem in this case. The real problem was that for some reason (as to which the parties were unable to agree) the tenant did not go into possession until 8 January 1996, and at some moment unspecified some person on behalf of the landlord had scratched the date "21.12.1995" out of the tenancy agreement and substituted "8.1.1996" with the result that the prescribed form and the tenancy agreement no long coincided at all.

What then was the result? The Court of Appeal considered a number of recent cases including Andrews v. Brewer (1997) 30 HLR 203 and York v. Casey [1998] 2 EGLR 25; [1998] 30 EG 110, in both of which the error as to the dates was quite obvious, on the face of it, and was moreover a mere clerical error, so that no one could reasonably be said to have been misled as to the reality of the situation, and Panayi v. Roberts (1993) 25 HLR 421; [1993] 2 EGLR 51; [1993] 28 EG 125 where the error was more substantial and likely to cause general confusion as to what was actually intended.

Looking at the facts of the instant case, said the Court of Appeal, it involved more than a mere clerical error and there was indeed room for confusion as to the termination date of the tenancy. In the circumstances, the purported s.20 notice was ineffective to create an assured shorthold tenancy. As to the view expressed by the trial judge to the effect that the simplication of the procedural requirements for creating an assured shorthold tenancy which were introduced in 1996 suggested that a relaxed view might be taken of the pre-1996 requirements, if anything the opposite was the case. In the words of Holman J:

The policy behind the enactment in 1996 ... of section 19(A) may well have been to make the law less technical and thus encourage the supply of more rental properties. But that does not seem to me to justify taking a more benevolent view as to the prior law, thereby depriving tenants of whatever security they are entitled to under that law. The fact that the law has been made less technical tends to emphasise rather than to detract from, its prior technical state.

Artesian Residential Investments Ltd v. Beck [1999] 22 EG 145

In this case the Court of Appeal had to consider the relationship between the statutory provisions which govern the termination of a fixed term assured tenancy which are contained in the Housing Act 1988 and the provisions relating to relief from forfeiture which are set out in s.138 of the County Courts Act 1984.

Briefly, the facts of the case were as follows: the plaintiff owned the freehold of a property which was let to the defendant on the terms of a lease for a period of ten years which included a proviso for forfeiture if the rent, which was payable monthly should at any time be 14 days in arrears. The defendant tenant was made redundant, and came to owe several months rent, amounting to some »2,239. Since the property was the defendant's only or principal home, and the tenancy therefore was an assured tenancy, the landlord served notice under s.8 of the Housing Act 1988 and in due course obtained an order for immediate possession. Subsequently, the tenant was able to borrow the money to pay off the arrears in full, and applied to the court for relief from forfeiture, which was granted. The landlord appealed, on the basis that in the case of an assured tenancy there can be no forfeiture as such, since the provisions of the 1988 Act expressly preclude the landlord from obtaining possession by way of forfeiture proceedings. Therefore, said the landlord, there having been no forfeiture, the provisions of the 1984 Act relating to relief from forfeiture, could have no application in the case of an assured tenancy. The Court of Appeal agreed. Both the judge at first instance and Hirst L J in the Court of Appeal expressed concern at the fact that such an interpretation of the statutory provisions effectively mean that a tenant who is an assured tenant of the property in question would thus seem to be placed in a worse position than who is not, but in the words of the latter:

I can well sympathise with the judge's anxiety ... as to the consequences of this interpretation upon a tenant's position under an assured tenancy as contrasted with other types of tenancy. But I am driven to the conclusion I have reached by the express terms of the 1988 Act ...

Drew-Morgan v. Hamid-Zadeh [1999] 26 EG 156

The question whether any particular form was required for notices served under s.48 of the Landlord and Tenant Act 1987 was the main point at issue in this case. Section 48 provides that a landlord of residential premises is not entitled to treat any rent or service charge as being lawfully due from the tenant unless and until the landlord has "... By notice [furnished] the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant."

In issuing proceedings for possession of a flat leased by her to the tenant, the landlord Ms Drew-Morgan relied on the fact that a notice served by her under s.21 of the Housing Act 1988 which, in the words of the court, "correctly identified the name and address of the tenant, together with the name of the landlord and an address for her 'c/o 300 Upper Street, Islington, London N1 2TU.' A few centimetres below, at the bottom of the document, the address is recorded as the address of the 'landlord's agent', who is named and whose representative has signed the document."

The court considered a number of earlier cases including Dallhold (UK) Pty. Ltd v. Lindsey Trading Properties Inc. [1994] 1 EGLR 93; [1994] 17 EG 148, Rogan v. Woodfield Building Services Ltd. [1995] 1 EGLR 72; (1995) 20 EG 132; [1995] 27 HLR 78, and Marath v. MacGillivary (1996) 28 HLR 484 before concluding that the notice in this case, although actually served for the purposes of s.21 of the Housing Act 1988, was also sufficient to fulfil the requirements of s.48 of the 1987 Act. "The document ..." said the court, "informed the tenant of the name and address of the landlord's agent, without limitation or qualification. It was not served for the purpose of s.48 or did it state that the address was one at which 'notices (including notices in proceedings) may be served' on the landlord. So far as section 48(1) is concerned these omissions are irrelevant. In my judgement ... the landlord furnished a notice sufficient for the purposes of s.48 (1) when the notice under section 21 of the 1988 Act was served on the defendant in the form that was used in this case ..."