Bradshaw and another v Baldwin-Wiseman

Rent Act 1977, Case 11 in Schedule 15 — Court’s dispensing power where notice in writing to the tenant that possession might be recovered under this case has not been given — Scope of dispensing power — Not to be invoked so as to turn an ordinary regulated tenancy never intended to be temporary into a tenancy terminable at will — This was a tenant’s appeal from a decision of a county court judge granting the landlords a possession order on the basis of an application of Case 11 — The landlords’ mother had let a flat in her house to the appellant’s husband and after his death had accepted the appellant as the tenant — There had been no suggestion that the mother might wish to recover possession for her own use, the letting being an ordinary letting of a dwelling-house within the Rent Act with the normal full protection — After the mother’s death the plaintiffs (present respondents) sought possession of the flat under Case 11 because one of the plaintiffs and her husband wished to sell their own house and occupy the flat on the husband’s retirement — The county court judge, relying on the narrower construction of the dispensing power in Case 11 given by two members of the court in Fernandes v Parvardin, held that he had only to consider whether any injustice or inequity flowed directly from the failure to give notice — He then applied Case 11 to a letting which was never intended to be a temporary letting but had been intended to carry with it all the security of the Rent Act — Held by the Court of Appeal that the judge’s approach was wrong — It could not have been the intention of Parliament, even in the expanded provisions consequent on the amendments made by the Housing Act 1980, to apply Case 11, by means of the discretion to dispense with written notice, to an ordinary letting of a regulated tenancy so as to undermine its security — Tenant’s appeal allowed — Stephenson LJ’s broader construction of the phrase ‘just and equitable’ in Fernandes v Parvardin preferred to the approach of the majority This was an appeal by the tenant, Mrs H M Baldwin-Wiseman, from an order of Judge MacManus, at Brighton County Court, granting to the landlords, the present respondents, Mrs Hazel Joan Bradshaw and Mrs Stella Martyn, possession of the first-floor flat at 13 Berridale Avenue, Hove, Sussex. A I Niblett (instructed by Weedens, of Brighton) appeared on behalf of the appellant; D J Lamming (instructed by Donne, Mileham & Haddock) represented the respondents. Giving judgment, GRIFFITHS LJ said: This is an appeal from an order of His Honour Judge MacManus given on August 14 1984 in which he made an order for possession of the top flat in premises known as 13 Berridale Avenue, Hove, East Sussex, in favour of the plaintiffs. The defendant now appeals to this court against that order. The facts which were either agreed or found by the learned judge are as follows. The house at 13 Berridale Avenue had been owned by the plaintiffs’ mother, Mrs Morris, and she had lived there since about 1930. At first she occupied the whole house, but in 1968 the house was divided into a top and a bottom flat. Mrs Morris continued to occupy the bottom flat, but on March 14 1968 she let the first-floor flat to a lady by the name of Sybil Irene Clarke. Thereafter, at the termination of that tenancy, she let the flat on December 17 1971 to the appellant’s husband. The appellant has lived in that flat as her home ever since that date. Her husband, who was a retired naval officer, died on July 19 1977 and thereafter Mrs Morris accepted the appellant as her tenant, and she continued to live there together with her daughter. When this tenancy was granted to the defendant’s husband there was no suggestion that Mrs Morris might in due course require to recover the property for her own use. The overwhelming inference is that she did not want to; she found the house too large and she had divided it into two so that the top half would provide her with a source of income. In those circumstances the commander and his wife obtained the lease of property which would give them the protection of the Rent Acts, or so they thought. So matters continued until Mrs Morris died on August 29 1981 and the property passed, under her will, to her two daughters, who are the present plaintiffs. At the beginning of 1982 the plaintiffs sold a lease of the ground-floor flat. On March 24 1984, without any previous warning, a notice to quit was served upon the appellant terminating her tenancy with effect from June 24 1984. Immediately thereafter, on July 2 1984, proceedings were commenced to recover possession of the premises on behalf of the sisters. The reason why the plaintiffs wished to recover possession is that one of them, Mrs Bradshaw, is married to a doctor who practises in Hove. Dr Bradshaw is now 67 years of age and he is contemplating retirement. He and his wife live in a substantial house in Hove in which he had his surgery. The intention at the time of the hearing, which we are told has now been fulfilled, was to sell that house in the hope that, if they obtained possession of the top flat, they would occupy it as their home so that the doctor could continue to do locum work in the Hove area. In addition to that house (which was valued at some £80,000), Dr and Mrs Bradshaw also own a house in the country in Wiltshire. Perhaps it is more correctly described as a cottage in Wiltshire. The appellant herself is now 73 years of age and she is of very modest means. If possession is obtained against her she will have no alternative but to resort to the council to find her accommodation. Those are the relevant facts. The plaintiffs based their claim upon two grounds. First, they claimed under section 98(1) and Case 9 of Schedule 15 to the Rent Act 1977. A claim under section 98(1) gives a discretion to the judge as to whether or not to make an order for possession, and he will only make it if he is satisfied that it is reasonable to make the order and that undue hardship will not be caused to the tenant by the making of such an order (see section 98(1), Case 9 of Schedule 15 and para 1 of Part III of that Schedule). The facts that I have stated speak for themselves. There can be no question here that far greater hardship would be suffered by this 73-year-old widow if she is turned out of possession than would be suffered by the doctor and his wife if they themselves were not able to124 obtain possession of the flat and had merely to continue to enjoy the income derived therefrom. The solicitor appearing on behalf of the plaintiffs recognised that he had no prospect of succeeding under Case 9, and it appears from the judgment that he abandoned this head of claim. But the alternative way in which the claim was put forward relied upon section 98(2) of the Rent Act 1977 and Case 11 in Part II of the Schedule 15 to that Act as amended by section 66 of and the Schedule 7 to the Housing Act 1980. That is a ground upon which a landlord is entitled to an order for possession, leaving the judge no discretion, if he had let his house for a short period intending to return to it after a temporary absence. The obvious example is a man who has a house which is his home in this country but who is from time to time sent to work abroad and wishes to let the house for a limited period to obtain some income while he cannot use it himself, but does not want to lose his home. Parliament, recognising that a person in his position would be unwilling to let the house for a limited period if there was a risk that he could not repossess it, has made special provision that in such circumstances the house may be let without fear that it cannot be recovered. But it is a condition of such a right to recover the property that the landlord gives a written notice to the tenant at the time of the letting that he may seek to recover possession when he returns. The purpose of giving the written notice is obvious and important. It is of the utmost importance to a tenant that he should appreciate when he takes rented property whether or not he is obtaining a secure tenure. I can think of nothing likely to have a greater effect on the way people order their lives than the knowledge one way or the other whether or not they have a secure home. With those general considerations in mind, I turn to the particular wording of Case 11, which provides: Where a person who occupied the dwelling-house as his residence (in this Case referred to as ‘the owner-occupier’) let it on a regulated tenancy and — (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and (b) the dwelling-house has not, since — (i)    22nd March 1973, in the case of a tenancy which became a regulated tenancy by virtue of section 14 of the Counter-Inflation Act 1973; (ii)   14th August 1974, in the case of a regulated furnished tenancy; or (iii)  8th December 1965, in the case of any other tenancy, been let by the owner-occupier on a protected tenancy with respect to which the condition mentioned in paragraph (a) above was not satisfied, and (c) the court is of the opinion that of the conditions set out in Part V of this Schedule one of those in paragraphs (a) and (c) to (f) is satisfied. If the court is of the opinion that, notwithstanding that the condition in paragraph (a) or (b) above is not complied with, it is just and equitable to make an order for possession of the dwelling-house, the court may dispense with the requirements of either or both of those paragraphs, as the case may require. The giving of a notice before 14th August 1974 under section 79 of the Rent Act 1968 shall be treated, in the case of a regulated furnished tenancy, as compliance with paragraph (a) of this case. I now turn to Part V, which provides: 2. The conditions referred to in paragraph (c) in each of Cases 11 and 12 and in paragraph (e)(ii) of Case 20 are that — (a) the dwelling-house is required as a residence for the owner or any member of his family who resided with the owner when he last occupied the dwelling-house as a residence; (b) the owner has retired from regular employment and requires the dwelling-house as a residence; (c) the owner has died and the dwelling-house is required as a residence for a member of his family who was residing with him at the time of his death; (d) the owner has died and the dwelling-house is required by a successor in title as his residence or for the purpose of disposing of it with vacant possession; (e) the dwelling-house is subject to a mortgage, made by deed and granted before the tenancy, and the mortgagee — (i)    is entitled to exercise a power of sale conferred on him by the mortgage or by section 101 of the Law of Property Act 1925; and (ii)   requires the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power; and (f) the dwelling-house is not reasonably suitable to the needs of the owner, having regard to his place of work, and he requires it for the purpose of disposing of it with vacant possession and of using the proceeds of that disposal in acquiring, as his residence, a dwelling-house which is more suitable to those needs. I pause there. Those provisions considerably extend the cases in which Case 11 originally applied when the Rent Act 1977 first came into force. In particular it has added the ground under which the present plaintiffs claim, which is ground 2(d). Written notice had not been given to either the appellant or her husband as required by Case 11, paragraphs (a) and (b). Therefore, unless the court was prepared to dispense with the requirement of written notice on the ground that it was just and equitable to do so, the plaintiffs were not entitled to an order for possession. The learned judge in his approach to this question relied upon a decision of this court reported in (1982) 5 HLR 33 Fernandes v Parvardin.* The facts in that case were very briefly these. A flat had been let, and at the time of the letting the landlord had warned the tenants that she would want the house back in order to provide a home for herself. But she did not give the written notice required by Case 11. She let it to a young Iranian couple and their child and in due course, when she wanted to repossess the property, she claimed under Case 11. *Editor’s note: Also reported at (1982) 264 EG 49, [1982] 2 EGLR 104. The trial judge concluded that, in so far as any hardship was concerned, the greater hardship would fall upon the tenants but that, as a warning had been given orally at the time that they could not look upon this as other than a temporary letting, it was a case in which it was proper for him to exercise the discretion given to him in the proviso to Case 11 and to make an order for possession of the dwelling-house, dispensing with the requirement of written notice. In giving judgment in that case Stephenson LJ said: It was plain from the evidence that the defendants were made fully aware, when they were granted the tenancy in August 1977, that this flat had been part of the plaintiff’s home occupied as her residence, and that therefore if the plaintiff required it for herself or for a member of her family, they might be turned out. But that notice had not been given to them in writing, and the judge was therefore given the power to dispense with the requirement that the notice should be in writing, provided he was satisfied that it was just and equitable to make an order for possession. The learned judge clearly decided that it was. I would assume for the purpose of this appeal that he was entitled, as Miss Turner has argued, to take into account all the circumstances — anything which might make it unjust or inequitable, including the greater hardship, which he clearly had very much in his mind. Having taken all those circumstances into account, he obviously came to the conclusion that, simply because the clear information which the statute required had not been given in writing but only by word of mouth, it was just and equitable to dispense with the requirement that it should be in writing, and to turn the defendants out of possession. Sorry as one must feel for the defendants, and sorry as quite clearly the judge did feel for them, nevertheless I find it quite impossible to say that he was wrong in thinking that it was just and equitable to make the order for possession which he did, in all the circumstances. So Stephenson LJ in that case was prepared to give a very broad construction to the phrase ‘just and equitable’ in the proviso. Donaldson LJ, with whom Sir David Cairns agreed, sounded a note of caution as to the construction of ‘just and equitable’. Donaldson LJ said this: This appeal should not, in my judgment, be regarded as an authority on the construction of Case 11. I say that, because whilst it may well be that the construction which my lord has assumed is correct — it is certainly sufficient for dealing with this appeal — it is possible to take a narrower view of Case 11 along these lines: Parliament, in enacting Case 11, decided that if the full conditions of that Case were met, there was to be no discretion and the court was obliged to grant possession. In so enacting, it must have assumed that it was just and equitable to grant possession if the full conditions of the Case were met. It then went on to confer upon the learned judge a discretion to grant possession if, notwithstanding a failure to comply with the conditions set out in (a) or (b), it remained just and equitable to grant possession. On that view of the matter the court is wholly concerned to see what injustice or inequity flows from the failure to comply precisely with the terms of the Case. On the facts disclosed in this appeal, where the only failure to comply with the full terms of the Case consisted in giving an oral notice as opposed to a written notice, clearly justice and equity would not be affected, since there is no suggestion that there was any misunderstanding on the part of the tenants, or that the oral notice was not just as effective, as a practical matter, as would have been a written notice. With that expression of view Sir David Cairns agreed. The learned judge decided this case by basing himself upon the narrower construction of the wording suggested by Donaldson LJ. What he said was this: I have reached the conclusion that I should adopt the line of Donaldson LJ and Sir David Cairns. I have to ask myself what injustice or inequity flows from the failure to give notice. If I disregard the question of greater hardship I cannot see that any injustice or inequity arises. Such injustice or inequity may arise in a case where failure to give notice had been interpreted by a tenant that he had a secure tenancy and he had, for example, turned down alternative accommodation. In 1971 the plaintiffs did not have in mind the eventualities which have occurred. With great respect to him, I cannot accept the learned judge’s125 approach. I cannot believe that it was the intention of Parliament, even in the expanded section consequent upon the amendment introduced by the Housing Act 1980, to apply Case 11 to a letting which was not in the first place intended to be a temporary letting, and which was a letting which was intended to carry with it the security of the Rent Act. If Mrs Morris herself were still alive and she now sought to proceed under Case 11 and asked the court to dispense with any written notice, it is to my mind inconceivable that a court would consider it just and equitable to do so. She would be seeking, by asking for that dispensation, to turn what was in the first place intended to be an ordinary letting of a regulated tenancy carrying all the protection of the Rent Acts into a tenancy which could be terminated at will. As I say, I cannot believe that, although there is now given a right to a successor in title to apply under Case 11, it can be intended to be exercised in respect of a tenancy which never came into being as a short temporary letting in the first place. Furthermore, for my part, I prefer the approach of Stephenson LJ. The words ‘just and equitable’ are of very wide import and I can see nothing in the contract which justifies giving them any restrictive meaning. I would regard the use of those words as directing the court to look at all the circumstances of the case. Those would embrace the circumstances affecting the landlord, or his successors in title, and the circumstances of the tenant, and of course the circumstances in which the failure to give written notice arose. It is only if, having considered all those circumstances, the court considers that it would be just and equitable to give possession that it should do so, because it must be borne in mind that, by failing to give the written notice, the tenant may well have been led into a wholly false position. As I say, in the circumstances of this case, where it is apparent that there never was any intention to create what I might call ‘a Case 11 tenancy’, it cannot be just and equitable to dispense with written notice. Accordingly, for these reasons I would allow this appeal. I should add this. It was pointed out to us when the appeal was opened that there might have been other grounds upon which the defendant could have resisted an order for possession. In particular it was pointed out that, on the face of the pleadings, it appears that these premises were first let to another tenant, and, that being so, it was at least arguable that the subsequent letting, without Mrs Morris having regained possession of the premises, could not be a letting to which Case 11 applied. However, it has not been necessary for the court to hear argument upon that issue, because we are satisfied that the appellant is entitled to succeed on the ground with which I have dealt and which was that upon which she based her notice of appeal. For these reasons I would allow this appeal. BROWNE-WILKINSON LJ and SIR GEORGE WALLER agreed and did not add anything of their own. The appeal was allowed with costs in the Court of Appeal and below. Legal aid taxation was ordered.