Fernandes v Parvardin and another

Rent Act 1977 — Appeal from possession order granted by county court judge — Case 9 and Case 11 in Schedule 15 to 1977 Act — County court judge decided in favour of tenants under Case 9 on the ground that greater hardship would be caused by granting the order than by refusing it, no suitable alternative accommodation being available for the tenants — He decided in favour of the landlord under Case 11, however, finding that the necessary conditions were satisfied, except that the notice given by the landlord that possession might be recovered under the Case had been oral and not in writing — He exercised the discretion given to him by Case 11 to dispense with the requirement that the notice had to be in writing — Judge’s decision to grant possession to landlord upheld by Court of Appeal, but warning given as to construction of Case 11 — Judge’s broader construction assumed to be correct for purposes of appeal, but narrower view as to the application of ‘just and equitable’ may be correct, namely, what injustice or inequity flows from failure to comply precisely with Case? This was an appeal by the tenants, Mahsood Parvardin and Faresh Parvardin, from a decision of Judge Hunter at Willesden County Court granting an order for possession to Francoise Fernandes of an upper flat at 61 Crewys Road, London NW2. Mrs Fernandes, the landlord, plaintiff in the county court and respondent to this appeal, was the owner of the whole house, which was divided into two flats. Miss Janet Turner (instructed by Alexander Gowers & Co) appeared on behalf of the appellants; K Munro (instructed by Graham, Harvey & Co) represented the respondent. Giving judgment, STEPHENSON LJ said: This is an unfortunate case. It is an appeal from a possession order made by His Honour Judge Hunter in the Willesden County Court, turning out an Iranian couple with a small child, who are students and have nowhere else to go. They are the occupants of the upper flat at 61 Crewys Road, in London NW2, which is owned by Mrs Fernandes, the plaintiff-respondent. She and her husband, and I think four children, left the house, which is divided into two flats, in 1971 to go abroad. When they went, they let the house in two floors on two three-year tenancies. They came back in 1974, but they did not resume residence in Mrs Fernandes’ house; she again let the two flats for three-year periods. Then, in August of 1977, Mrs Fernandes, still living in this country but not returning to this house of hers, let the upper floor to Mr and Mrs Parvardin, the defendants-appellants, on a weekly tenancy, as the judge found, for a two-year period. But the learned judge found, and it is not challenged by Miss Turner, who did not appear in the court below but appears in this court for the appellants, that that letting was subject to a condition that possession might be claimed on the ground that the premises had been the plaintiff’s home. When the son of Mrs Fernandes reached 18, having finished his education at one stage, he went on to further education in London and it was convenient for him to reside in this house in Crewys Road, so she wanted to turn the Parvardins out and put her son in. She therefore gave the Parvardins notice to quit, which notice expired on October 31 of last year. Naturally they did not want to go, and on November 2 Mrs Fernandes took out a summons in the county court claiming possession; she claimed possession on the ground that she urgently required the place for her son. The claim was resisted by the Parvardins; it was resisted on two grounds, the first ground arising under section 98(1)(b) of the Rent Act 1977 and Case 9 in Part II of Schedule 15 to that Act. Section 98(1) provides as follows: Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either (a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act. Case 9, however, empowers a court to give possession, but it is a discretionary power; it is a case in which the court may order possession, and it is: Where the dwelling-house is reasonably required by the landlord for occupation as a residence for — (a) himself, or (b) any son or daughter of his over 18 years of age. The case was therefore put on that basis, that Mrs Fernandes required this flat for her son who was over 18 years of age. But the court was not bound to make an order if that provision was satisfied, and before such an order could be made the court would have to take into account paragraph 1 of Part III of Schedule 15, which declares: A court shall not make an order for possession of a dwelling-house by reason only that the circumstances of the case fall within Case 9 in Part I of this Schedule if the court is satisfied that, having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order than by refusing to grant it. The learned judge decided that case in favour of the tenant. He found that there was no suitable alternative accommodation for the Parvardins; they had tried to find it and had failed; they were not eligible for a council house and the best that they could hope for was some temporary accommodation provided by the local authority. He came to the conclusion that greater hardship would be caused by granting the order for possession than by refusing to grant it, a decision which was plainly right. But unfortunately for the Parvardins, as the learned judge said, the evidence disclosed a further ground; that ground is what I might105 call the section 98(2) ground and Case 11 in Part II of Schedule 15. Subsection (2) of section 98 provides as follows: If, apart from subsection (1) above, the landlord would be entitled to recover possession of a dwelling-house which is for the time being let on or subject to a regulated tenancy, the court shall make an order for possession if the circumstances of the case are as specified in any of the Cases in Part II of Schedule 15. Part II of Schedule 15 concerns cases in which the court must order possession where the dwelling-house is subject to a regulated tenancy, and Miss Turner concedes that this tenancy was a regulated tenancy. The first of the Cases in Part II, Case 11, is this: 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 then there are two further conditions, (b) and (c), which I need not read because it is conceded that both of them were satisfied — If the court is of the opinion that, and then there is what Miss Turner has called the proviso 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 learned judge resolved this issue in favour of the plaintiff, Mrs Fernandes. In the note of his judgment which he has provided for us, he says: The only issues of fact were: (1)  Whether the original letting had been for a period of two years only, (2)  Whether it was a term that possession might be claimed on the ground that the premises had been the plaintiff’s home and, (3)  Whether oral notice of that had been given to the defendants before the tenancy. I had no hesitation in resolving those in favour of the plaintiff. He concluded, after referring to his conclusion on the first part of the case, that The plaintiff reasonably required the premises for her son but the balance of hardship plainly lay with the defendants and accordingly there would be no order for possession on that ground. Having resolved the issues of fact in favour of the plaintiff, the only remaining question was whether the discretion should be exercised notwithstanding that the notice required by Case 11 was not in writing. I concluded that, in all the circumstances, it should be and ordered possession accordingly. Miss Turner, who has presented the case most forcibly and attractively, has to face the fact that if the plaintiff had given to the defendants in writing the notice that she gave orally, then no amount of greater hardship could have availed the defendants; it would have been obligatory on the court to order possession. The learned judge was faced with the fact that no notice in writing had been given at the relevant date, which is, according to paragraph 2(d) of Part III, the date of the commencement of the regulated tenancy in question; in other words, August of 1977. But 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. Therefore, in spite of Miss Turner’s able submission, I would dismiss the appeal. Agreeing, DONALDSON LJ said: I, too, would dismiss the appeal. I would be content to do so on the grounds stated by my Lord; I would, however, enter one caveat. This appeal should not, in my judgment, be regarded as an authority on the construction of Case 11. I say that, because while 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. Subject to that caveat, and for the reasons I have given, I, too, would dismiss the appeal, adding only my tribute to Miss Turner’s argument, which has lost none of its force by having been both briefly and cogently put this morning. Also agreeing, SIR DAVID CAIRNS said: If the Case in the Schedule has to be interpreted in the way in which it has been interpreted by my Lord, Stephenson LJ, which is the most favourable construction for the defendants then, for the reasons he has given, I, too, would dismiss the appeal. Like my Lord, Donaldson LJ, I have considerable sympathy with the view that that is an over-favourable construction. Lest there should be any risk of the appearance of disagreement between the members of the court in respect of the manner in which this appeal has been presented to us, I agree with both my brethren in what they have said in that regard. The appeal was dismissed with costs, order for possession not to be enforced within 28 days. The order for costs was not to be proceeded with until further order. Legal aid taxation of the appellants’ cost was ordered.