Jones and another v White and another
Balcombe, Butler-Sloss, Mann, LJJ
Oral notice that landlord might wish to return — No written notice — Notice to quit — Possession order — Whether court entitled to make possession order dispensing with requirement for written notice — Court of Appeal holding it was just and equitable not to make order — Judgment in favour of tenants
The plaintiffs jointly owned the freehold at 17 Kings Road, Fareham, Hampshire. They originally lived there, but moved abroad in 1964. The defendants became tenants in October 1972. At the grant of the tenancy it was indicated orally that the plaintiffs might return to England and require the property for their own use. In December 1978 they applied to register the rent. In January 1988 the plaintiffs wrote giving the defendants advance warning that they might be returning to England on a permanent basis and would require the property from February 1 1990. The defendants claimed that they could not be required to give up the tenancy. In June 1992 notice to quit was given to the defendants and a summons for possession was issued in October 1992. The county court granted possession to the plaintiffs on August 2 1993. The defendants appealed.
In 1972 when the tenancy was granted no notice could have given it full Rent Act protection. If at that time a written notice had been given under section 79 of the Rent Act 1968, the tenancy might have had the very limited protection afforded by sections 77 and 78, ie up to six months’ security of tenure if notice to quit had been given after the tenancy had been referred to a rent tribunal to register the rent. There was no suggestion that either side had any of those provisions in mind. Both sides believed that the tenancy was unprotected. In 1974 Parliament changed the law to give full Rent Act protection to the tenancy. At the same time Parliament gave the “owner-occupier” landlord, who had not given a section 79 notice, a six months’ breathing space in which to give a written notice under Case 11 of Part II of Schedule 15 to the 1977 Act. The plaintiffs did not do so. The question was whether the judge was entitled to take the view that it was just and equitable to make a possession order of the property and dispense with the requirement for a written notice under Case 11, para (a).
Oral notice that landlord might wish to return — No written notice — Notice to quit — Possession order — Whether court entitled to make possession order dispensing with requirement for written notice — Court of Appeal holding it was just and equitable not to make order — Judgment in favour of tenantsThe plaintiffs jointly owned the freehold at 17 Kings Road, Fareham, Hampshire. They originally lived there, but moved abroad in 1964. The defendants became tenants in October 1972. At the grant of the tenancy it was indicated orally that the plaintiffs might return to England and require the property for their own use. In December 1978 they applied to register the rent. In January 1988 the plaintiffs wrote giving the defendants advance warning that they might be returning to England on a permanent basis and would require the property from February 1 1990. The defendants claimed that they could not be required to give up the tenancy. In June 1992 notice to quit was given to the defendants and a summons for possession was issued in October 1992. The county court granted possession to the plaintiffs on August 2 1993. The defendants appealed.
In 1972 when the tenancy was granted no notice could have given it full Rent Act protection. If at that time a written notice had been given under section 79 of the Rent Act 1968, the tenancy might have had the very limited protection afforded by sections 77 and 78, ie up to six months’ security of tenure if notice to quit had been given after the tenancy had been referred to a rent tribunal to register the rent. There was no suggestion that either side had any of those provisions in mind. Both sides believed that the tenancy was unprotected. In 1974 Parliament changed the law to give full Rent Act protection to the tenancy. At the same time Parliament gave the “owner-occupier” landlord, who had not given a section 79 notice, a six months’ breathing space in which to give a written notice under Case 11 of Part II of Schedule 15 to the 1977 Act. The plaintiffs did not do so. The question was whether the judge was entitled to take the view that it was just and equitable to make a possession order of the property and dispense with the requirement for a written notice under Case 11, para (a).
Held The appeal was allowed.
1. In dealing with the principal issue whether it was just and equitable to make a possession order dispensing with notice, that provision had been considered in Fernandes v Parvadin (1982) 264 EG 49 and Davies v Peterson [1989] 6 EG 130. In those cases the court, taking into account all the circumstances, decided that “just and equitable” should be given a wide meaning and that the written notice requirement could be dispensed with. This case differed significantly.
2. In the present case, at the time of the tenancy grant, when oral notice was given, neither side believed that there was security of tenure. Consequently, the oral notice was of much less significance.
3. Accordingly, although the oral notice given in the present case was relevant factor, it was not entitled to the priority which the judge gave it, outweighing the relatively limited residential requirement of the plaintiffs, the balance of hardship and [“in”] convenience.
4. The length of time in which the defendants had lived in this property as their home and the severe hardship that would result from eviction, as compared to the lesser hardship to the plaintiffs were all relevant factors in deciding what was just and equitable. Those factors clearly outweighted the significance of the 1972 oral notice.
Damien Lochrane (instructed by Dyer Burdett & Co, of Havant) appeared for the plaintiffs; Philip Glen (instructed by Larcomes, of Waterlooville) appeared for the defendants.
