Dibbs and others v Campbell and another

Rent Act 1977, Case 19 in Schedule 15, and Housing Act 1980, section 52 —- Protected shorthold tenancy — Failure to comply with technical requirements of section 52(1)(c) of 1980 Act — Purported surrender of tenancy and creation of new shorthold tenancy — Whether effective — The parties intended to enter into a protected shorthold tenancy for one year but there was a failure to comply with section 52(1)(c) — Landlords could have sought possession at the end of the year and asked the court to exercise discretion under section 55(2), but instead the parties decided to retrieve the position by the surrender of the existing tenancy (whatever it was) and the grant by the landlords of a new protected shorthold tenancy, this time for three years — A formal deed of surrender of the tenancy was executed and a refund of rent over a registered amount was made to the tenants — It had been intended that the tenants should vacate the property for a short time before the new shorthold tenancy was created, but, in the inclement weather conditions then prevailing, this was not in fact done — A notice complying with section 52(1)(b) was served on the tenants and the grant of what was intended to be a new shorthold tenancy for three years was made The tenants went into possession for three years and at the end the landlords served the appropriate notice of proceedings123 for possession under Case 19 — The judge below made an order for possession in favour of the landlords — He found that a protected shorthold tenancy for three years had been entered into by the parties and that it had been properly determined in accordance with Case 19 by the landlords — On appeal it was argued, inter alia, on behalf of the tenants that the purported surrender of the original tenancy was ineffective, as the tenant had not physically vacated the premises — The result, it was submitted, was that the purported grant of a protected shorthold tenancy for three years fell foul of section 52(2) of the 1980 Act as being ‘granted to a person who, immediately before it was granted, was a protected or statutory tenant of that dwelling-house’ — After considering authorities, including Collins v Claughton and Scrimgeour v Waller, the court held that it was well established that it was not necessary in order to effect the surrender of a protected tenancy for the tenant physically to remove himself from the premises; the surrender can be achieved by the conduct and intention of the parties — This was the position here; the new protected shorthold tenancy had thereafter been properly created; and three years later properly terminated — Appeal dismissed The following cases are referred to in this report. Brown v Draper [1944] KB 309 Collins v Claughton [1959] 1 WLR 145; [1959] 1 All ER 95, CA Foster v Robinson [1951] 1 KB 149; [1950] 2 All ER 342, CA Scrimgeour v Waller [1981] EGD 286; (1980) 257 EG 61, [1981] 1 EGLR 68, CA This was an appeal by tenants, Robert Campbell and Brian John Bunker, from the decision of Judge Hunter, at Wandsworth County Court, granting possession of premises at 1A Mallinson Road, London SW11, to the landlords, Molly Dibbs, Sheila Constantine and Peter O’Toole. Stuart Cakebread (instructed by Lawrence & Co) appeared on behalf of the appellant tenants; Graham Clark (instructed by Malthouse Chevalier) represented the respondent landlords. Giving judgment, PURCHAS LJ said: This appeal is against a possession order made by His Honour Judge Hunter on October 5 1987 at the Wandsworth County Court. The order was in respect of land at 1A Mallinson Road, London SW11 (‘the premises’), and was in favour of the applicants, Molly Dibbs, Sheila Ellen Constantine and Peter O’Toole, to whom collectively and severally I shall hereafter refer as ‘the landlords’. The appellants, against whom the order was made, were Robert Campbell and Brian John Bunker, to whom I shall refer as ‘the tenants’. The order against the appellants also provided for its enforcement in prescribed circumstances. These parts of the order are not in issue in this appeal, which concerns the application of Case 19 in Part II (cases in which court must order possession where dwelling-house subject to regulated tenancy) of Schedule 15 to the Rent Act 1977 (‘the 1977 Act’). Before coming to the facts, which are largely not in dispute, it is convenient to set out the relevant parts of the statutory code under which the order was made. These are contained in the 1977 Act and the Housing Act 1980 (‘the 1980 Act’). The 1977 Act created protected tenants and tenancies (see section 1). Subject to the provisions in Part I of the 1977 Act, a tenancy under which a dwelling-house is let as a separate dwelling is a protected tenancy. Section 2(1) provides that after the termination of a protected tenancy the person who was in occupation immediately before the termination and thereafter remains in occupation of the dwelling-house becomes a statutory tenant. Section 98(2) provides that the court shall make an order for possession if the circumstances are as specified in any of the cases in Part II of Schedule 15. Part II of the 1980 Act created a new kind of protected tenancy known as ‘a protected shorthold tenancy’. By way of introduction before citing the relevant provisions, the intention of Parliament appears to have been the creation in carefully controlled circumstances of short tenancies of not less than one year and not more than five years’ duration in which both landlord and tenant were afforded a degree of protection; the one against statutory tenants holding over for indefinite periods under the 1977 Act, and the other, from rent reviews during a specific period. The relevant provisions of the 1980 Act are as follows: 52  Protected shorthold tenancies (1)  A protected shorthold tenancy is a protected tenancy granted after the commencement of this section which is granted for a term certain of not less than one year nor more than five years and satisfies the following conditions, that is to say — (a)   it cannot be brought to an end by the landlord before the expiry of the term, except in pursuance of a provision for re-entry or forfeiture for non-payment of rent or breach of any other obligation of the tenancy; and (b)   before the grant the landlord has given the tenant a valid notice stating that the tenancy is to be a protected shorthold tenancy; and (c)    either a rent for the dwelling-house is registered at the time the tenancy is granted or — (i)    a certificate of fair rent has, before the grant, been issued under section 69 of the 1977 Act in respect of the dwelling-house and the rent payable under the tenancy, for any period before a rent is registered for the dwelling-house, does not exceed the rent specified in the certificate; and (ii)   an application for the registration of a rent for the dwelling-house is made not later than 28 days after the beginning of the term and is not withdrawn. (2)  A tenancy of a dwelling-house 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 of that dwelling-house. (3)  . . . (4)  . . . (5)  If a protected tenancy is granted after the commencement of this section — (a)   for such a term certain as is mentioned in subsection (1) above, to be followed, at the option of the tenant, by a further term; or (b)   for such a term certain and thereafter from year to year or some other period; and satisfies the conditions stated in that subsection, the tenancy is a protected shorthold tenancy until the end of the term certain. . . . 55  Orders for possession (1)  The following Case shall be added to the Cases in Part II of Schedule 15 to the 1977 Act (mandatory orders for possession): ‘Case 19 Where the dwelling-house was let under a protected shorthold tenancy (or is treated under section 55 of the Housing Act 1980 as having been so let) and — (a)   there either has been no grant of a further tenancy of the dwelling-house since the end of the protected shorthold tenancy or, if there was such a grant, it was to a person who immediately before the grant was in possession of the dwelling-house as a protected or statutory tenant; and (b)   the proceedings for possession were commenced after appropriate notice by the landlord to the tenant and not later than 3 months after the expiry of the notice. A notice is appropriate for this Case if — (i)    it is in writing and states that proceedings for possession under this Case may be brought after its expiry; and (ii)   it expires not earlier than 3 months after it is served nor, if, when it is served, the tenancy is a periodic tenancy, before that periodic tenancy could be brought to an end by a notice to quit served by the landlord on the same day; (iii)  it is served — (a)   in the period of 3 months immediately preceding the date on which the protected shorthold tenancy comes to an end; or (b)   if that date has passed, in the period of 3 months immediately preceding any anniversary of that date; and (iv)  . . . .’ (2)  If, in proceedings for possession under Case 19 set out above, the court is of opinion that, notwithstanding that the condition of paragraph (b) or (c) of section 52(1) above is not satisfied, it is just and equitable to make an order for possession, it may treat the tenancy under which the dwelling-house was let as a protected shorthold tenancy. These provisions demonstrate the protection afforded by the 1980 Act to ensure that unscrupulous landlords would not contravene the spirit and purpose of the Rent Acts by imposing upon reluctant but prospective tenants the restricted protection afforded by the shorthold protected tenancy, but at the same time encouraged reluctant landlords to make leasehold accommodation available under terms of between one and five years. Further, section 52(2) prevents the landlord from avoiding statutory protection already acquired by tenants under the 1977 Acts by inducing statutory tenants to enter into a protected shorthold tenancy. The contents of the notice in order to be valid are carefully specified by regulations. On the other hand, section 55(2) provides protection for the landlord against a failure on his part or on the part of those who act for him to124 comply with the technical requirements of section 52 where ‘it is just and equitable’ to do so. In coming to consider the circumstances of the present appeal it is, in my judgment, important to bear in mind the statutory intentions disclosed by these provisions. The relevant history can be shortly stated. In November 1982 the landlords and the tenants intended to enter an agreement creating a protected shorthold tenancy. There was no previous landlord and tenant relationship between them so as to attract the provisions of the 1977 Act. Accordingly, an agreement was entered between the parties dated November 26 providing for a protected shorthold tenancy to start on November 29 1982 and to run for the period of one year. All would have been well but for the misconduct of the solicitors acting for the landlords. They failed to comply with the technical requirements of section 52(1)(c) of the 1980 Act. The agreement had provided for a rent of £80 per week. Eventually, after the time required by the Act to qualify for a shorthold protected tenancy, a rent of £40 per week was registered on March 3 1983. The landlord’s solicitors realised in due course that things had gone wrong. The judge found that had possession been sought at the end of the one-year tenancy he would have had a discretion to act under the saving provision of section 55(2) and would have exercised his discretion in favour of the landlords. In an attempt to retrieve the position a course of action was devised which involved a surrender under deed of the tenancy, whatever it may have been, created by the first agreement and the granting of a new protected shorthold tenancy for a longer period, namely three years, and for the repayment by the landlords of various sums due to the tenants, eg rent paid in excess of the registered rent etc. Mr Bunker, one of the tenants, testified before the learned judge that the tenants entered this second agreement under pressure from the landlords. The learned judge totally rejected his evidence on this crucial aspect of the case. Accordingly, in April 1983 the landlords’ solicitors were in touch with the tenants through Mr Bunker. These negotiations resulted in an agreement reached over the telephone either on or shortly before April 15 1983 on the following lines which were confirmed in a letter dated May 11 1983 from the landlords’ solicitors to the tenants: 1  Our clients to refund to you the sum of £520, being 13 weeks overpayment of rent at £40 per week. 2  Yourselves to surrender your shorthold tenancy of the above property. 3  Yourselves to vacate the property for a period to be agreed. 4  Thereafter, a fresh shorthold agreement to be signed by all parties. Further negotiations and communications went on between the parties through the summer of 1983. These were related to matters not relevant to this appeal. It was not until October 5 1983 that the agreement was implemented in part. It is necessary to consider in a little detail what exactly happened in October 1983. The tenants then being Messrs Campbell and Bunker executed a formal deed of surrender dated October 5 1983. This witnessed: 1  The Tenants HEREBY irrevocably SURRENDER and Release all their rights, title and interest whether arising at Law or in Equity or under or by virtue of any Act of Parliament or any statutory modification or re-enactment for the time being in force in the premises situate at and known as the Upper Maisonette 1A, Mallinson Road London SW11 TO THE INTENT that the term granted in an Agreement in writing dated the 26th day of November 1982 shall forthwith merge and be extinguished in the freehold reversion in the said premises. 2  . . . . 3  The Tenants hereby irrevocably waive all rights, claims or demands arising, or which may have arisen, against the Landlords under or by virtue of the said agreement and release the Landlords from and against all claims, demands or liabilities thereunder. The sum of £520 due to the tenants was repaid. Owing to the inclement weather prevailing at the time, the tenants did not physically vacate the premises for any significant time. It is not clear whether there was or was not a formal handing over of the keys to Mr Merlin [landlords’ property manager] and their receipt back. As will appear from this judgment, these technical formalities did not, in my judgment, have any significance. On October 6 1983 a formal notice complying with section 52(1)(b) of the 1980 Act was served on the tenants. This recited, inter alia, that a fair rent of £40 per week was already registered under the Rent Act 1977. On the same day the landlords and the tenants entered an agreement for a protected shorthold tenancy of the premises starting from October 6 1983 for a term of three years at £40 per week. The tenants then went into possession of the premises for a period of three years. The landlords served a notice in writing on the tenants dated October 3 1986 to the effect that proceedings for possession under Case 19 might be brought after the expiry of the notice on January 12 1987. The remaining tenant, Mr Bunker, swore an affidavit on July 31 1987 in reply to the affidavit of the landlord, Molly Dibbs, sworn on February 16 1987 in support of her application for possession under Case 19. In his affidavit Mr Bunker asserted that since the determination of the tenancy entered into in November 1982 he had been in possession of the premises as a protected tenant, since the tenancy granted in November 1982 was not a protected shorthold tenancy but an ordinary protected tenancy under the 1977 Act, and that thereafter he had been either a protected or a statutory tenant. Mr Bunker asserted that section 52(2) of the 1980 Act prevented the agreement reached in 1983 from creating a protected shorthold tenancy. This was a carefully drafted affidavit. It is significant that it did not advert to the surrender by the tenants in October 1983 at all or allege that the agreement was made under pressure brought upon them by the landlords as Mr Bunker was later to assert when giving evidence on oath before the learned judge. For this reason and as a result of his general appreciation of the evidence, the learned judge found himself unable to accept any of the evidence presented by Mr Bunker. I quote from his judgment: I find Mr Bunker’s evidence wholly unreliable. The arrangement agreed in June was put into effect in October; either the 5th or the 6th; I don’t think that it matters which. At the hearing Mr Bunker further testified that he executed the agreement in October 1983 before he was served with the notice required by section 52(1)(b) of the 1980 Act. This is one of the requirements in respect of which it is open to the judge as a matter of discretion to give relief to a landlord who has defaulted on a technicality. Having found Mr Bunker’s evidence wholly unreliable, the learned judge said: And so I am left with no evidence upon which I can rely as to the sequence of events; whether notice was given to the tenant in the correct time or manner, or not. In her affidavit Mrs Dibbs stated that she was present and observed that the notice was served before the agreement was executed; but it is common ground between the parties that she was not present in the afternoon when the tenancy was executed. It is not disputed, however, that she had been present in the office of her solicitor during the same morning and had then seen the draft notice and signed it. In view of this, it would seem to be a matter for almost irresistible inference that the solicitor conducting the affair would make sure that the notice was presented before the agreement was signed. If it were not, then I would not interfere with the exercise of the judge’s discretion to give the landlords relief from the breach of this technicality. The judge himself considered he was entitled to rely on the maxim omnia praesumunter rite esse acta. With respect, I do not think that it was necessary for the judge to rely on this maxim, although I cannot say he was wrong to do so. The ultimate result is, however, that unless section 52(2) applies to defeat the arrangements made on the 6th, or perhaps it was the 7th, October 1983 then, in my judgment, the judge was right to conclude that a protected shorthold tenancy was properly created between the parties on that date. It is, however, necessary now to consider the assertion that Mr Bunker was already a protected tenant and on the determination by the deed of surrender of his pre-existing tenancy he became, if only momentarily, a statutory tenant and within the bar provided by section 52(2) of the 1980 Act. Was the agreement reached during the summer of 1983 and brought into effect on October 5 or 6 1983 effective to determine the previous contractual tenancy and substitute for it a shorthold tenancy as the parties intended?  In his judgment the judge records that this point was abandoned before him: Originally Mr Turner [the tenant’s barrister] took a point on the landlords’ failure to secure vacant possession as making the surrender invalid, but that has been rightly abandoned. The point has been revived on appeal before us. Although this court is reluctant to entertain arguments that have been abandoned in the court below or not pursued, in the circumstances of this case it seemed proper to permit Mr Cakebread to argue the point. Before leaving the judgment, Mr Clark, who was appearing, as he has before125 us, for the landlords, asked the learned judge whether had the matter been before him as an application seeking possession on the basis that the tenancy created in November 1982 was a protected shorthold tenancy he would have granted relief. The judge concluded: As to the failure to comply with the registration of rent requirement, I have no doubt that everybody’s intention was to enter into a one-year shorthold tenancy . . . it would be just and equitable to treat it as such. The position without question is that the occupation of the premises by the tenants at the beginning of October 1983 was a protected contractual tenancy falling within section 1 of the 1977 Act. The only question is whether or not there was an effective surrender of that tenancy by the tenants. In his judgment, the judge described the arrangements as ‘a very sensible arrangement in my view’ and, as appears from the extract of his judgment already cited, directed his attention as to whether or not the notice required by section 52(1)(b) and other details were satisfied so as to create a protected shorthold tenancy after roundly rejecting Mr Bunker’s assertion that the agreement was reached under duress. Mr Cakebread relied upon section 2(1)(a) of the 1977 Act, which provides: after the termination of a protected tenancy of a dwelling-house the person who, immediately before that termination, was the protected tenant of the dwelling-house shall, if and so long as he occupies the dwelling-house as his residence, be the statutory tenant of it. Mr Cakebread submitted that the effect of the deed of surrender was to bring about the termination of a protected tenancy and to create a statutory tenancy falling within the protection of section 52(2) of the 1980 Act. Had it been necessary, Mr Cakebread would have submitted that a temporary departure as envisaged in the terms agreed during the summer of 1983 would not have brought to an end the occupation enjoyed by the tenants necessary to satisfy section 2(1)(a) of the 1977 Act. There was animus revertendi and corpus successionis which would establish continuing occupation. If the matter depended upon the physical surrendering of possession of the premises previously occupied either under a statutory or protected tenancy then, for my part, I would agree that there was considerable force in Mr Cakebread’s submissions. It would not be reasonable for the right to continue to occupy premises to depend upon fine, technical distinctions of this sort, however complicated the Rent Act provisions undoubtedly are. Mr Clark relied on the case of Collins v Claughton [1959] 1 WLR 145. In this case the premises were held by the husband as a statutory tenant living with his wife. He wrote to the landlords asking that the rent book should be changed into her name as she would be paying the rent in future. The landlords agreed and this was done. Subsequently the wife left the husband, who remained in possession of the premises. Later still, the wife gave notice that she was terminating the tenancy. The defendant thereupon offered to pay the rent, but the plaintiffs refused to accept this and subsequently commenced proceedings claiming possession on the footing that he was a trespasser. The judgment of the Court of Appeal was delivered by Roxburgh J. He referred to the leading case of Brown v Draper [1944] 1 KB 309 citing part of the judgment of Lord Greene MR at p 313: A tenant remaining in possession cannot lawfully contract not to avail himself of the protection which the Acts give him, if and when the landlord takes proceedings against him to recover possession. If he wishes to place himself outside the protection of the Acts without putting the landlord to the necessity of taking proceedings, his proper course is to deliver up possession. Unless and until he does so, he is under the shelter of the Act, whether or not he so desires. No contract, and a fortiori, no mere statement of his wishes or intentions, can deprive him of the statutory protection. Roxburgh J then turned to consider the case of Foster v Robinson [1951] 1 KB 149. This concerned a rent-controlled property occupied under a protected contractual tenancy at the time of purported surrender. The tenant became unfit to work by reason of age and infirmity but was told by the landlord he could live in his cottage rent-free until he died — an offer which the tenant accepted. Lord Evershed held that there had been a valid surrender of the original tenancy: If there is a new arrangement which the tenant is asserting by his conduct, then he is estopped from denying that the landlord was capable of entering into that new arrangement; and, if the new arrangement could not be entered into while the old agreement subsisted, it follows that the tenant is equally prevented from denying that the old agreement has gone. Continuing with his judgment in Collins v Claughton Roxburgh J said: the bearing of the Rent Acts upon the problem needs further statement. Their application to a contractual tenant of rent controlled premises was, indeed, decided in Foster v Robinson. After pointing out that the tenant was a contractual tenant and not a statutory tenant, Sir Raymond Evershed MR said: ‘It is fair to say, however, that the observation of Lord Greene MR is true generally, and that in the case of a rent controlled house there must be either an actual yielding up of possession, or its equivalent . . . or an order against the tenant . . .’. By the use of the phrase ‘or its equivalent’ Sir Raymond Evershed was either construing or modifying Lord Greene’s proposition, because the phrase ‘or its equivalent’ necessarily embraces something which is not an actual yielding up of possession, and what he had in mind is made clear in the following passage: ‘In my view there was, as a result of the agreement come to, a delivery up of possession under the former tenancy and a resuming of possession under a new transaction immediately afterwards. To use the language of Cockburn CJ in Oastler v Henderson (1877) 2QBD 575, there must be ‘something amounting to virtual taking of possession’. If the key had been handed over and then been handed back the next minute that would have symbolised the delivery up of possession, and I cannot think that it vitally matters that that performance was not gone through.’ This judgment establishes clearly that in order to surrender a tenancy it is not necessary to abandon occupation provided that the intention of all parties is clear. Mr Clark referred to para 1847 in Woodfall on Landlord and Tenant, 28th ed vol I, dealing with the requisites of a good surrender. In para 1-1850 the learned author accepts as an acceptable means of surrender a surrender by the acceptance of a new lease from the reversioner to begin at any time during the continuation of the first lease. The question, however, of the impact of the Rent Acts is not referred to. However, Mr Clark referred us to the decision in Scrimgeour v Waller (1980) 257 EG 61, [1981] 1 EGLR 68. This was a decision of the Court of Appeal consisting of Stephenson and Dunn LJJ and Sir David Cairns. The facts of the case concerned premises occupied by a gardener under a protected tenancy granted by a previous owner and employer in respect of which he entered into a fresh agreement with a new owner. The county court judge dismissed the appellant’s claim for possession, upholding a submission that the gardener was a protected tenant regardless of the new agreement which he had reached with the new owner. After entering the employment of Mr Scrimgeour the gardener, Mr Waller, accepted a statement of the terms of employment required by statute, which he signed. It contained the following statement: Service cottage. The cottage which you occupy is free of rent and rates and is so occupied for the better performance of your duties. You will leave it in good order with vacant possession together with any equipment which has been in your charge on the date on which your employment terminates. (b) The employers do not undertake to provide accommodation at Coach House Cottage for any specific period of your employment and they reserve the right to provide alternative accommodation within approximately the same distance from Thorncombe House. Before the learned county court judge the case was made that the tenant was occupying the cottage under a statutory tenancy prior to the statement signed by the tenant, to which I have already referred, and that that agreement was not effective as a surrender of the protected tenancy. The county court judge upheld this contention. Sir David Cairns said at p 63: In my view the effect of the agreement of January 3 1979 was quite clearly to effect a surrender of any such tenancy, because clause 12(a) is completely inconsistent with the continuance of a tenancy at £10 a week. There is no doubt that a protected tenancy can be brought to an end by surrender (Foster v Robinson [1951] 1 KB 149) and it is quite clear from the report in that case that it is not necessary in order that there should be a surrender that the tenant should go out of possession and then come in again, or should hand over the keys and have them handed back to him, or any formality of that kind. It can all be derived from appropriate conduct and appropriate words. It seems to me that you could not have anything clearer than you have in this case in the document itself showing that there must be surrender of any tenancy that did exist, because either a fresh tenancy or a licence is being created. Dunn and Stephenson LJJ agreed on this point. This judgment is, of course, binding on us. The facts established by the learned judge are that it was clearly the intention of the parties to enter a protected shorthold tenancy in November 1982 and, in the face of a technical failure to achieve this, that the matter should be remedied by the surrender of whatever126 tenancy was being enjoyed by the tenants during 1983 in consideration for the granting of a protected shorthold tenancy of three times the length of the one originally agreed. In truth, as the learned judge said, this was a sensible compromise of the position, both allowing the landlords to escape from what might have been difficulties of failing technically to comply with the requirements of the statute on the one hand and giving to the tenant a longer term for the shorthold protected tenancy than he would otherwise have enjoyed. The authorities binding upon this court establish that it is not necessary in order to effect the surrender of a protected tenancy for the tenant physically to remove himself from the premises; but that the surrender can effectively be achieved by the conduct and intention of the parties. In these circumstances, what was achieved by the parties here was the classic instance cited in Woodfall, para 1-1850, namely the surrender of an existing protected tenancy and the creation of a new contractual tenancy itself protected under section 52 of the 1980 Act. It is, therefore, unnecessary to consider the point raised by Mr Clark on his respondent’s notice to the effect that the judge should have held that the tenancy created in November 1982 was a tenancy in respect of which he could have exercised his discretion to treat it as a protected shorthold tenancy and to have granted possession as a result of the determination of that by the deed of surrender. This was not the basis upon which the matter was presented to the court below although, as Mr Clark frankly conceded, as a matter of sheer coincidence the notice served in respect of the 1983 tenancy would have been effective, since the anniversaries were very close to determine a tenant holding over on a shorthold protected tenancy created in November 1982. I do not consider that it would have been open to the court to have upheld the order of the learned judge on this argument notwithstanding the skilful and attractive way in which it was presented by Mr Clark. However, for the reasons previously given, I would dismiss this appeal. Agreeing, HEILBRON J said: I have only this to add: As the learned judge pointed out, following the discovery by the landlords of the difficulty, they could have sought possession at the end of the tenancy in November 1983, and the court having a discretion to treat it as a shorthold tenancy, despite the procedural conditions as set out in section 52(1)(c) of the 1980 Act not having been complied with, could have done so, and Mr Bunker was therefore on risk of having to go out of possession after one year, albeit that was the original agreement. Without, as the learned judge found, any pressure being exerted upon Mr Bunker, the parties agreed that the alternative course should be pursued. It was one which eliminated risks to both sides and it had the advantage of providing certainty. In 1982 Mr Bunker was wanting, he said in evidence, a secure one-year term. In 1983 he negotiated a further three years’ protected tenancy at the same rent as he had been paying, provided certain conditions were fulfilled on both sides. The landlords were to make certain refunds, the tenant would vacate the premises for a brief period, surrender his first lease and receive another in exchange. It would be, and was found to have been, a protected shorthold tenancy for a period of three years. This was, the learned judge said, a sensible compromise, and so it was. Mr Bunker found it too cold to move out in October, and so he did not do so. He did, however, sign the deed of surrender on October 5 1983. There followed the notice and he signed the tenancy agreement on October 6. He received the agreed refunds and he then continued to reside in the premises for the following three years. It was submitted, inter alia, on his behalf, that even if he were a contractual tenant prior to the surrender, the effect of the latter without an actual yielding up of possession rendered the deed ineffective, that there then followed a protected or statutory tenancy under section 2 of the Rent Act 1977, and that this negated the power to grant a new protected shorthold tenancy, because section 52(2) of the 1980 Act would be thereby infringed. It is now, however, quite clear from the authorities referred to by Purchas LJ, which are all one way, but which I do not propose to repeat, that such is not the case and that if the intention of the parties is clear, there is no need for a tenant to give up his occupation in order to surrender his tenancy. The basis of the agreement in early 1983 was that there would be a short gap, but it was never intended that Mr Bunker would take his belongings away and bring them back, even in the less inclement summer months. It is, however, quite clear from Collins v Claughton [1959] 1 WLR 145 at pp 148-149 that either a contractual or a statutory tenant can effect a valid surrender (by operation of law) by an actual yielding up of possession — or its equivalent — or an order for possession against the tenant or, a fortiori, by the signing of a deed of surrender in terms which are clear and unmistakable. In this case it had been thought necessary for the tenant to go out and then come back — not, however, it seems, taking his possessions with him. Such formalities, and others such as the handing over of the keys only to hand them back again, are similarly unnecessary. When in addition to the surrender there follows the tenancy everyone intended, expected and wanted, the authorities are clear that they achieved in law what they desired. The appeal was dismissed with costs, not to be enforced without the leave of the court; order nisi against Legal Aid Fund and legal aid taxation of appellants’ costs.