Rent Act 1977 — Claim for possession — Protected shorthold tenancy — Failure to register a rent prior to grant — Agreement to remedy failure by surrender and regrant — Whether surrender effective — Whether second tenancy a protected shorthold
In November 1982 the plaintiff landlords granted what was intended by the parties to be a protected shorthold tenancy for a term of one year to the defendants. The landlords’ solicitors had failed to comply with the requirements of section 52(1)(c) of the Housing Act 1980; an application for the registration of fair rent was not made in due time. It was agreed that the tenants would surrender by deed the tenancy that had been created and the landlords would grant in return a protected shorthold tenancy for a term of three years. To the extent that the tenants had paid a rent above the registered rent, this would be refunded.
On October 5 1983 the tenants executed the formal deed of surrender releasing “all their rights title and interest whether arising at Law or in Equity or under or by virtue of any Act of Parliament …”. On October 6 a formal notice complying with section 52(1)(b) of the 1980 Act was served on the tenants; this stated that the tenancy then to be granted would be a protected shorthold tenancy. On the same day the parties entered into an agreement for a protected shorthold tenancy for three years. In proceedings for possession at the termination of that tenancy, the tenants claimed that as the first one-year term was not a protected shorthold, but a protected tenancy and then a statutory tenancy at the surrender, section 52(2) of the 1980 Act prevented the grant of a protected shorthold tenancy: “a tenancy … is not a protected shorthold tenancy if it is granted to a person who, immediately before it was granted, was a protected or statutory tenant …”.
