Ridehalgh v Horsefield and another

Case 19, Schedule 15, Rent Act 1977 — Protected shorthold tenancy — Proceedings for possession — Statutory provision for proceedings to be brought within stipulated period — Landlord bringing proceedings after expiry of period — Whether provision going to jurisdiction — Whether provision a procedural stipulation — Judgment for landlord on other grounds at first instance — Tenants’ appeal allowedThe plaintiff landlord, R, was the freehold owner of “Holly Trees”, a three-bedroomed bungalow at 7 Carr Lane, Hambleton, Blackpool. In July 1985, the first defendant, H, signed a lease as tenant for a term of 12 months commencing on July 16 1985. He moved in with Miss I and both had been in possession ever since. In each renewal there was a written agreement, the fourth and final one, signed by R and by H and Miss I as “the tenants” on October 16 1988. That agreement expired on October 15 1989. On July 5 1990, solicitors for R gave notice under the Rent Act 1977, Schedule 15, Part II, Case 19, as inserted by section 55 of the Housing Act 1980. On January 17 1991, R’s solicitors issued a summons for possession stating, inter alia, that before the grant in 1985 R had given the tenants notice stating that the tenancy was to be a protected shorthold tenancy. H denied that such a notice had been given, while Miss I denied that she had been party to the agreement; she also claimed that she was a protected tenant. At first instance, the question turned on the factual issue of whether shorthold notice had been served. The judge held that the notice had been given. It was further held at first instance that the notice of July 5 1990 was capable of having effect as a notice requiring a possession for the purposes of section 21 of the Housing Act 1988 and the court ordered possession for the plaintiff landlord. The tenants appealed. Held The appeal was allowed. 1. The parties had rightly agreed that, in light of the judge’s finding, the agreement of July 1985 created a protected shorthold tenancy within the meaning of section 52(1) of the Housing Act 1980. Further, the judge had concluded on the basis of the evidence that H had contracted for himself and as agent for Miss I so that both defendants were tenants. 2. The position was that on October 16 1989 the defendants became and remained statutory tenants of “Holly Trees”. They did not become assured shorthold tenants and accordingly section 21 of the Housing Act 1988 had no materiality. That was the wrong basis for the action to have proceeded on. 3. The grounds upon which a court could make an order for possession of a dwelling-house, which was subject to a statutory tenancy, were dealt with in section 98(1) and (2) of the 1977 Act. Subsection (2) provided in mandatory terms that the court “shall make an order … if the circumstances of the case are as specified in any of the Cases in Part II of Schedule 15”. Case 19 was inserted into Part II of the Schedule by section 55(1) of the Housing Act 1980 and provided, inter alia, that, where the dwelling-house was let under a protected shorthold tenancy, “(b) the proceedings for possession were commenced after appropriate notice by the landlord to the tenant and not later than three months after the expiry of the notice”. 4. The difficulty for the landlord in the present case was that proceedings for possession were not commenced until January 17 1991, which was a date more than three months after the expiry of the notice on October 5 1990. The tenants contended that condition (b) went to jurisdiction and could not be “waived”. Therefore, the court could not have made the possession order. 5. The tenants’ contention was correct. Condition (b) in Case 19 was not a procedural requirement; it was one of two necessary conditions without which Case 19 was not established. If the case was not established then the court had no jurisdiction to make the order because the general prohibition in section 98(1) of the 1977 Act applied. A party could not waive a precondition to the making of an order. Otherwise he would, by his waiver, be in a position to lift a prohibition imposed by Parliament itself: see Wandsworth London Borough Council v Fadayomi [1987] 1 WLR 1473 quoting from Barton v Fincham [1921] 2 KB 291. Francis Nance (instructed by Rawsthorn Edlestons, of Preston) appeared for the appellant tenants; and David Smith (instructed by Oglethorpe Sturton) appeared for the respondent landlord.