Daejan Properties Ltd v Mahoney

Landlord and tenant — Rents Acts — Whether landlords estopped from denying that second successor to be treated as holding a statutory tenancy — Whether statutory tenancy can be held by joint tenants In 1963 the appellant’s father was granted a three-year term of the subject flat. On the expiration of the contractual term, the father remained in occupation as a statutory tenant under section 1(4) of the Rent Act 1965. On his death in 1976, his widow became a statutory tenant by succession under para 2 of Schedule 1 to the Rent Act 1968. The appellant gave up her career to care for her mother, with whom she lived. In an exchange of correspondence in 1991, the respondent landlords’ managing agent confirmed that they regarded the widow and the appellant as joint tenants; shortly afterwards the widow and the appellant refused an offer of council accommodation. In August 1992 the widow died. The landlords contended that the appellant was only entitled to an assured tenancy: see section 39(3) and para 6 of Schedule 1 to the Housing Act 1988. In the county court the judge rejected the appellant’s claim that she had a statutory tenancy by reason of the 1991 exchange of correspondence constituting an agreement under para 13 of Schedule 1 to the Rent Act 1977 or on the basis of an estoppel. The appellant appealed. Held: The appeal was allowed. There was no agreement satisfying para 13 of Schedule 1 to the Rent Act 1977. Further the appellant could not have become a statutory tenant by estoppel because Parliament had clearly prescribed the way in which a statutory tenancy can arise or be transmitted. However the landlords had estopped themselves from denying that the appellant and her mother would be treated by them as if they were joint statutory tenants. The landlords were therefore estopped from denying that the appellant is entitled to be treated as a statutory tenant. The following cases are referred to in this report. Dealex Properties Ltd v Brooks [1966] 1 QB 542; [1965] 2 WLR 1241; [1965] 1 All ER 1080, CA Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850; [1970] 3 WLR 287; [1970] 2 All ER 871; (1970) 22 P&CR 74; [1970] EGD 761; 216 EG 31, HL Lloyd v Sadler [1978] QB 774; [1978] 2 WLR 721; [1978] 2 All ER 529; (1978) 35 P&CR 78; [1978] 1 EGLR 76; [1978] EGD 291; 246 EG 479, CA Rogers v Hyde [1951] 2 KB 923; [1951] 2 All ER 79; (1951) 157 EG 96 Stone (J&F) Lighting & Radio Ltd v Levitt [1947] AC 209; [1946] 2 All ER 653; (1947) 62 TLR 737, HL This was an appeal by Josephine Frances Mahoney from the decision of Judge Hill-Smith in an originating application of the landlords, Daejan Properties Ltd, to have determined that the appellant was an assured tenant of 20 Ashworth Mansions, London W9. William Geldart (instructed by Daniel & Harris) appeared for the appellant; Guy Fetherstonhaugh (instructed by Memery Crystal) represented the landlords. Giving the first judgment, SIR THOMAS BINGHAM MR said: This appeal concerns a basement flat at 20 Ashworth Mansions, Elgin Avenue, Maida Vale, London W9. The issue is whether, as Miss Josephine Mahoney (the appellant) argues, she is now a statutory tenant of the flat (or entitled to be treated as such) or whether, as the respondent landlords argue and the judge held, she is an assured tenant by succession. In 1963 the then landlords granted the appellant’s father a three-year tenancy of the flat in which he lived (and had lived since 1954) with his wife and family, who included the appellant. When the contractual term ended he held over as a statutory tenant until his death in 1976. His widow (Mrs Emma Mahoney) then succeeded to the statutory tenancy. She lived in the flat with the appellant, her daughter. But as Mrs Mahoney grew older she became increasingly immobile and it became harder for her to use the steps down to the basement flat. So the appellant applied to the City of Westminster for housing accommodation better suited to her mother’s needs. In due course Mrs Mahoney was granted priority housing status, but no offer of accommodation was made. By this time the appellant was managing the affairs of her ailing mother as well as her own and they felt that in reality they held the tenancy jointly. Rent demands were indeed addressed to both of them. In January 1988 Mrs Mahoney accordingly signed a letter drafted by the appellant to the landlords explaining the family situation and asking that the tenancy should be in their joint names. This request the landlords, through their managing agents, refused in February 1988. Mrs Mahoney wrote again, this time to the managing agents, in about March 1988, but this request also (having taken instructions from the landlords) the managing agents refused. There matters rested until the spring of 1991. By this time Ashworth Mansions was being managed by a Mr Andrew Saxby as agent or subagent of the landlords. He had his office in the block and lived there. The appellant and her mother became friendly with him and he no doubt understood their position. In March 1991 the appellant had a conversation with Mr Saxby about the tenancy and he said he had always regarded the appellant and her mother as joint tenants. On March 12 1991 Mrs Mahoney signed a letter to him again drafted by her daughter. The letter read: Tenancy — 20 Ashworth Mansions Dear Mr Saxby, Following our recent conversation, would you kindly confirm that the tenancy is in our joint names, ie myself and my daughter, Miss Josephine Frances Mahoney, also that all rent demands will continue to be in joint names. On March 14 a reply was received by Mrs Mahoney signed on behalf of Mr Saxby. It read: Further to your letter of 12 March 1991, we confirm that the tenancy of Flat 20 is in the joint names of you and your daughter and will continue to be so. All demands will be sent in your joint names. Following this exchange of letters Mr Saxby ceased to be the agent and a rent demand was received from the managing agents addressed to Mrs Mahoney only. The appellant sent her cheque in payment, but wrote to the managing agents on March 28 1991: The tenancy of the flat is in joint names, ie my mother Mrs ER Mahoney and myself Miss JF Mahoney. Will you kindly note your records accordingly. May I also request that you issue a receipt for the rent. A receipt was then issued but it referred to Mrs Mahoney only. So the appellant wrote to the managing agents again on April 6 1991 (her letter being misdated March 6): May I refer to my letter of 28 March regarding the joint tenancy. Your previous agent, Mr A Saxby, gave his written assurance of this and also confirmed that all future rent demands would continue to be in joint names, ie Mrs E and Miss J Mahoney. I assume that you have his letter among your records however, for the avoidance of any doubt, I enclose a copy. Your rent receipt no 020491/0016 is therefore unsatisfactory. Will you kindly arrange for a new receipt to be issued in joint names. The managing agents replied on April 16 1991: With reference to your letter dated the 6th of March 1991, which we take to be the 6th April 1991, we would confirm that we have adjusted our records to reflect the joint names of Mrs ER Mahoney and Miss J Mahoney, and enclose our receipt for payment of £930.00, which was credited on the 2nd April 1991. Following this, rent demands were addressed to the appellant and her mother jointly. In April 1991 Westminster City Council offered the appellant and her mother accommodation better suited to Mrs Mahoney’s needs than 20 Ashworth Mansions. The appellant telephoned a recently-retired Westminster City councillor, who advised her and her mother on their housing problems. Having considered the matter the appellant and her mother refused the city council’s offer on April 22 1991. In coming to that decision they were influenced by the fact that they had been recognised as joint tenants by Mr Saxby and the managing agents. Had they not thought the joint tenancy question was settled, they would have given the offer more consideration. In August 1991 Mrs Mahoney’s priority housing status was withdrawn by Westminster City Council, apparently because the offer of accommodation had not been accepted. At the end of 1991 the managing agents successfully applied to the rent officer seeking registration of an increased fair rent. In the application they named the appellant and her mother as the tenants. But in February 1992 the managing agents wrote to Mrs Mahoney saying that an error had been made in transferring the tenancy to the joint names and that their records would be amended to show Mrs Mahoney only as the tenant. The appellant immediately challenged this, relying on the earlier letters, and a long correspondence ensured. In the course of this, in August 1992, Mrs Mahoney died. The appellant remained in the flat, where she still lives. On June 3 1992 the landlords issued an originating application seeking determination of the question whether the appellant held the flat upon a statutory or protected tenancy within the meaning of the Rent Act 1977 or an assured tenancy within the meaning of the Housing Act 1988. On February 16 1994 Judge Hill-Smith, sitting in Central London County Court, declared that the appellant held as an assured tenant by succession. She now challenges that ruling. It is clear that but for the events of 1991 the appellant would hold as an assured tenant. Para 6 of Part I of Schedule 4 to the Housing Act 1988 amended para 6 of Part I of Schedule 1 to the Rent Act 1977 so as to provide that on the death of a family member who has become a statutory tenant by succession any second succession will confer not a statutory tenancy, but an assured tenancy of the dwelling-house by succession. Mr Mahoney became the original statutory tenant when his contractual tenancy expired in 1966. His wife succeeded to the statutory tenancy on his death. On her death the appellant prima facie became the second successor and so an assured tenant by virtue of the Act, as amended. Two main arguments, each relying on the events of 1991, were put to the judge and repeated to us on behalf of the appellant to show why this result should not follow in this case. The first argument was based on para 13 of Part II of Schedule 1 to the Rent Act 1977, which provides: 13.–(1) Where it is so agreed in writing between a statutory tenant (‘the outgoing tenant’) and a person proposing to occupy the dwelling (‘the incoming tenant’), the incoming tenant shall be deemed to be the statutory tenant of the dwelling as from such date as may be specified in the agreement (‘the transfer date’). (2) Such an agreement shall not have effect unless the landlord is a party thereto, and, if the consent of any superior landlord would have been required to an assignment of the previous contractual tenancy, the agreement shall not have effect unless the superior landlord is a party thereto. (3) If the outgoing tenant is the statutory tenant by virtue of his previous protected tenancy, then, subject to subparagraph (6) below, this Act shall have effect, on and after the transfer date, as if the incoming tenant had been a protected tenant and had become the statutory tenant by virtue of his previous protected tenancy. (4) Subject to subparagraphs (5) and (6) below, if the outgoing tenant is a statutory tenant by succession, then, on and after the transfer date — (a) this Act shall have effect as if the incoming tenant were a statutory tenant by succession, and (b) the incoming tenant shall be deemed to have become a statutory tenant by virtue of that paragraph of Part I of this Schedule by virtue of which the outgoing tenant became (or is deemed to have become) a statutory tenant. (5) If the outgoing tenant is a statutory tenant by succession, the agreement may provide that, notwithstanding anything in subparagraph (4) above, on and after the transfer date, this Act shall have effect, subject to subparagraph (6) below, as if the incoming tenant had been a protected tenant and had become the statutory tenant by virtue of his previous protected tenancy. (6) Unless the incoming tenant is deemed, by virtue of subparagraph (4)(b) above, to have become a statutory tenant by virtue of paragraph 6 or 7 of Part I of this Schedule, paragraphs 5 to 7 of that Part shall not apply where a person has become a statutory tenant by virtue of this paragraph. (7) In this paragraph ‘the dwelling’ means the aggregate of the premises comprised in the statutory tenancy of the outgoing tenant. The exchange of letters with Mr Saxby in March 1991, and with the managing agents in March and April 1991, contained (it was argued) an agreement which satisfied para 13. The outgoing tenant was said to be the mother, the incoming tenant the mother and the appellant. The judge felt bound to accept the contrary arguments of the applicant landlords. He said: The applicant, however, contends that the provisions of [para] 13 are directed towards the substitution of one tenant with another: the wording of the [paragraph] is wholly inappropriate to reflect the substitution of a single tenant by a joint tenancy. Moreover, that the documents relied upon cannot constitute an agreement since they are imperfect: no date for the commencement of the change of tenancy is anywhere mentioned in the writing. Moreover, he relies upon the statement at p281 of the current edition (11th) of Megarry on the Rent Acts that: ‘It has been held, and is now clearly enacted, that two or more claimants cannot take the transmitted tenancy as joint tenants,’ That statement of the law is supported by the decision in Dealex Properties Ltd v Brooks [1966] 1 QB 542 at pp551 and 554. On the facts of this case I find myself compelled to find that [para] 13 is not applicable on both grounds. In my view, the judge was quite right to reject the appellant’s argument. In the ordinary way the absence of an express commencement date will not be fatal to the validity of an agreement. The court will infer that it is to take effect at once or within a reasonable time or on the expiry of a current period, as seems appropriate on the facts of the given case. Such a process is however scarcely permissible where the statute provides that the agreement in writing shall take effect ‘from such date as may be specified in the agreement’. The absence of a date in the letters is however symptomatic of a more fatal weakness, that the agreement contained 76 in the letters was not even purporting to effect a transfer of the statutory tenancy from Mrs Mahoney to Mrs Mahoney jointly with her daughter; it was seeking confirmation of an allegedly existing state of affairs, to which any mention of a commencement date would have been quite inappropriate. The appellant faces a further problem. While the exchanges of letters may reasonably be understood as containing an agreement between the appellant and her mother, on one side, and the landlords, on the other, it requires an impermissible degree of ingenuity to find a written agreement between the appellant and her mother. These objections are, in my judgment, fatal to the appellant’s argument on this point. The appellant’s second main argument was based on estoppel. It was argued that Mr Saxby’s letter contained a clear and unequivocal representation that the landlords regarded and would continue to regard the appellant and her mother as joint tenants: that the appellant and her mother relied on that representation and would suffer detriment if the landlords were permitted to resile from it; and that the landlords are accordingly estopped from denying that the appellant, as the survivor of joint statutory tenants, is or is to be treated as if she were, the statutory tenant of the flat. In rejecting this argument the judge expressed no doubt about the adequacy of Mr Saxby’s representation and he rejected a challenge to Mr Saxby’s authority to make it. He was satisfied that the appellant and her mother relied on Mr Saxby’s statement, as well as the managing agents’, and that they thereby lost the opportunity to accept the council’s offer. But he was troubled by the statutory provisions (already mentioned) which stipulated that the second successor to a statutory tenancy should only be entitled to an assured tenancy by succession. He asked whether, even if he were to hold that in the circumstances of this case an estoppel arose, that estoppel could compel the landlords to recognise a state of affairs which parliament itself had forbidden. He concluded that it could not, basing himself on para 962 of vol 16 of Halsbury’s Laws of England: The doctrine of estoppel may not be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted is to be invalid, or to give the court a jurisdiction which is denied to it by statute … For this proposition he cited the authority of J&F Stone Lighting & Radio Ltd v Levitt [1947] AC 209. Accordingly, with some regret, the judge rejected this argument also. It is, I think, true that a party cannot achieve by estoppel what he could not achieve by express agreement to the same effect. A statutory tenancy is, as the name makes clear, a creature of statute and it is of course a personal interest, not strictly an interest in land. Statute provides that such a tenancy arises when a qualifying contractual tenant holds over and may be transmitted either on the death of a statutory tenant by succession to a spouse or other member of the statutory tenant’s family residing with him for the requisite period before his death (section 2(1)(b) and Part I of Schedule 1 to the Rent Act 1977) or by an agreement satisfying the requirements of para 13 of Part II of Schedule 1 to the 1977 Act. Neither of the first two situations is applicable here, and it has already been shown that the agreement made did not satisfy the requirements of para 13. Since the appellant could not become a statutory tenant by an agreement not satisfying para 13, the landlords cannot be estopped from denying that the appellant is in law a statutory tenant. Parliament having clearly prescribed the way in which a statutory tenancy can arise or be transmitted, a statutory tenancy cannot arise or be transferred in any other way and the judge quite rightly held that an estoppel cannot have the effect of giving rise to a state of affairs which would indirectly confer on the court a jurisdiction denied by Parliament. Since the appellant did not become a joint statutory tenant by an agreement in the only form sanctioned by Parliament she could not become such by estoppel. So far the judge was quite right. But have the landlords, by their representation on which the appellant and her mother relied, estopped themselves from denying that the appellant and her mother would be treated by them as if they were joint tenants (and so joint statutory tenants, since a statutory tenancy was the only tenancy in existence at the relevant time)? That seems to me a natural and unstrained construction of what the landlords said, and this construction is not subject to the vice already described because it is implicit in it that the appellant and her mother were not joint statutory tenants, but would be treated as if they were. Such an approach appears to have commended itself in principle to Mr RE Megarry, commenting on Rogers v Hyde [1951] 2 KB 923 in ‘The Rent Acts and the Invention of New Doctrines’ (1951) 67 LQR 505 at p506. He there wrote: A subsidiary point was that the agreement expressly provided that the tenancy was ‘to be within the Rent Acts’. The tenant did not seek to contend that this provision took effect according to its tenor, and Lord Asquith of Bishopstone (with whom Birkett LJ concurred) said that ‘the parties are attempting by a contractual provision to bring the house within the protection of the Rent Restrictions Acts. This, in my view, they cannot do. Parties cannot of their own volition oust or reduce the jurisdiction of the courts to grant orders for possession’. With respect, this seems to require some qualification. There seems no reason why a landlord of premises within the Rent Acts should not by contract deprive himself of the right to seek possession on one or more of the grounds set out in the Acts. Again, even if the premises or letting is outside the Acts, why should not the landlord by contract give the tenant the same protection as if the Acts applied? It has, indeed, been said that the court may make an order for possession of an entire house conditional upon the landlord giving the tenant such protection for part of the house. The difference is between saying, ‘The Acts shall apply’ and saying, ‘I agree to your having by contract the same rights as if the Acts applied’. However, in Rogers v Hyde the tenant advanced no argument that the agreement was to be construed in the latter sense, and so the point must await decision in some other case. The landlords resisted this approach on three main grounds (some of them also applicable to earlier arguments). First, they argued (as the judge accepted when rejecting the appellant’s argument on para 13 of Part II of Schedule 1 to the 1977 Act) that there can never be more than one statutory tenant. I am not, for my part, persuaded that this is so. It is quite true that only one person can succeed to a statutory tenancy on the death of a statutory tenant, as was held by this court in Dealex Properties Ltd v Brooks [1966] 1 QB 542 and enacted in para 3 of Part I of Schedule 1 to the 1977 Act. But there appears to be no reason why, if joint tenants hold a protected tenancy, they do not both become statutory tenants if they both hold over on expiry of the contractual term. Nor, I think, is there anything in para 13 of Part I of Schedule 1 to the 1977 Act to oust the ordinary rule in section 6(c) of the Interpretation Act 1978 that the singular includes the plural: if the landlord is apprehensive of practical difficulties such as were described in Dealex Properties, his remedy is to withhold his agreement to the transfer. In my view, however, this point need not be decided, since even if there can under the existing legislation be no more than a single statutory tenant, that provides no reason why the landlords should not be bound by a representation that they would treat the appellant and her mother as if they were joint statutory tenants. Second, it was argued that Mr Saxby had no authority to make such representation and that the landlords are accordingly not bound. As already noted, the judge rejected that argument: he found that there was nothing in Mr Saxby’s terms of reference which circumscribed his authority. In any event, he would seem to have had apparent authority and his statement would appear to have been ratified. It is evident that these issues were not fully explored at the hearing and in the absence of a respondent’s notice this argument cannot avail the landlords. Third, the landlords argued that this alleged estoppel would be unworkable in practice. They drew particular attention to the difficulty of registering an increased rent if the appellant was not in law a statutory tenant, and to problems which could arise on succession. I am not, on the facts of this case, clear how any problem could arise on succession. Nor am I sure that the difficulty of assessing an increased rent is necessarily insuperable. But I am prepared to accept that the landlords could face real difficulties in these respects. That does not, however, in my judgment, provide a good reason for relieving the landlords from the effect of a representation which, as I conclude, they made and on which the appellant and her mother relied. To do so would expose the appellant to an even greater injustice. It is accepted that as an assured tenant the appellant would be exposed to the risk of paying a substantially increased rent. That might not matter to the appellant so long as the increase was covered by housing benefit, which the appellant currently receives, but it is clear from regulation 11 of the Housing Benefit (General) Regulations 1987 that housing benefit would not necessarily be increased to cover an increased rent of this flat. This is a risk to which the appellant would not have been exposed had she not, in reliance on the landlords’ representation, rejected the offer made by Westminster City Council in 1991. Counsel for the appellant sought to raise a further argument not raised below, but he did not in the end pursue it and it is unnecessary to say more about it. I would allow the appeal and declare that the landlords are estopped from denying that the appellant is entitled to be treated by them and their successors in title as if she were a statutory tenant of the flat. Agreeing, HOFFMANN LJ said: Miss Josephine Mahoney (who I shall call ‘Josephine’) has lived at 20 Ashworth Mansions in Elgin Avenue, Maida Vale, for 40 years. Originally her father was the tenant. When his last tenancy agreement expired at Christmas 1966 he became a statutory tenant under section 1(4) of the Rent Act 1965. In 1976 he died and by virtue of para 2 of Schedule 1 to the Rent Act 1968, his widow Mrs Emma Mahoney became statutory tenant by succession. In about 1984 Mrs Mahoney had a stroke which confined her to a wheelchair. Josephine gave up her career as a professional singer to look after her mother. Until the Rent Act 1977 was amended by the Housing Act 1988, Josephine was entitled on her mother’s death to become statutory tenant by second succession: see para 7 of Schedule 1 to the Rent Act 1977. But section 39(3) and para 6 to Schedule 1 of the Housing Act 1988 provided that instead of becoming a statutory tenant, she would be entitled to an ‘assured tenancy’. The most significant difference for Josephine was that under a statutory tenancy, the rent payable is the fair rent determined by the rent officer in accordance with section 70 of the Rent Act 1977. This contains the assumption in subsection (2) that the supply of such flats is equal to the demand: an assumption which an economist would probably consider circular but which in practice is applied by rent officers to make a significant discount from the rent likely to be obtainable in the open market. Under an assured tenancy, on the other hand, the rent is determined by a rent assessment committee in accordance with section 14 of the Housing Act 1988 and is the rent for which the flat might reasonably be expected to be let in the open market. When Josephine heard the details of the Bill which was to become the Housing Act 1988, she became concerned that she might not be able to afford the rent payable under an assured tenancy. So in March 1988 she approached the landlords’ agent, Mr Gould, and asked him whether the statutory tenancy could be transferred into the joint names of herself and her mother. The object was to ensure that when her mother died, she could continue as statutory tenant in her own right rather than become an assured tenant by statutory succession. She explained frankly to Mr Gould that the reason was to avoid having to pay the higher rent chargeable under an assured tenancy. Mr Gould put it up to his regional controller, but received the answer ‘Sorry No’. On April 25 1988 he wrote to Mrs Mahoney accordingly. Three years later Josephine tried again. This time she spoke to Mr Andrew Saxby, the landlords’ managing agent in charge of Ashworth Mansions. He was more receptive. He had been addressing the rent demands to mother and daughter jointly and told Josephine that he regarded them as joint tenants. She asked whether he would confirm this in writing and Mr Saxby said he would. So on March 12 1991 Josephine drafted a letter for her mother, then aged 92, to sign. It said: Dear Mr Saxby, Following our recent conversation, would you kindly confirm that the tenancy is in our joint names, ie myself and my daughter, Miss Josephine Frances Mahoney, also that all rent demands will continue to be in joint names. Yours sincerely, Mrs Emma Mahoney. On March 14 1991 Mr Saxby replied: Further to your letter of 12 March 1991, we confirm that the tenancy of Flat 20 is in the joint names of you and your daughter and will continue to be so. All demands will be sent in your joint names. Yours sincerely, Andrew Saxby. On March 21 1991 Mr Saxby notified the tenants that in future the Freshwater group of property companies, one of which held the headlease of the block, would be taking over the direct management of the flats. On March 28 1991 Josephine therefore wrote to Freshwater Property Management, saying that the tenancy was in joint names and asking that they ‘note your records accordingly’. Notwithstanding this request, the receipt for rent was issued in the name of Mrs Mahoney alone. So on April 6 1991 she wrote again: May I refer you to my letter of 28 March regarding the joint tenancy. Your previous agent Mr A Saxby, gave his written assurance of this and also confirmed that all future rent demands would continue to be in joint names, ie Mrs E and Miss J Mahoney. I assume that you have his letter among your records however, for the avoidance of any doubt, I enclose a copy. On April 16 1991 a Mr Stevens, on behalf of another company in the Freshwater group, replied: …  we would confirm that we have adjusted our records to reflect the joint names of Mrs ER Mahoney and Miss J Mahoney … Shortly before the end of this exchange of correspondence, Mrs Emma Mahoney received an offer of rehousing from Westminster City Council. 20 Ashworth Mansions was a basement flat and Josephine did not find it easy to manoeuvre the wheelchair down the steps. The council therefore put her in category A and she received an offer of a ground-floor flat on Lisson Green Estate. But she felt that as her position at Ashworth Mansions was now secure, it was not worth moving. Mr Stevens’s letter arrived on April 19, the day on which she had been invited to view the flat. So after discussing the matter with her councillor, she telephoned the council and said that she had decided to refuse. On August 9 1992 Mrs Emma Mahoney died at the age of 93. Even before her death, the landlords had changed their minds about recognising her and Josephine as joint tenants. On April 13 1992 they wrote to Josephine: It is the company’s belief at this moment that under the provisions of the Rent Act 1977 that the statutory tenant can be only one person, ie your mother Mrs ER Mahoney, no matter what correspondence you have managed to obtain from Saxbys and our Rent/Records Department. After Mrs Mahoney’s death they claimed that Josephine was an assured and not a statutory tenant. They issued an originating application asking the county court to determine the question. On February 16 1994 Judge Hill-Smith decided ‘with some regret’ that the landlords were right. Josephine now appeals. Josephine claims that the exchange of correspondence with Mr Saxby constituted a change of statutory tenant by agreement in accordance with para 13 of Schedule 1 to the Rent Act 1977. The relevant provisions are as follows: 13–.(1) Where it is so agreed in writing between a statutory tenant (‘the outgoing tenant’) and a person proposing to occupy the dwelling (‘the incoming tenant’), the incoming tenant shall be deemed to be the statutory tenant of the dwelling as from such date as may be specified in the agreement (‘the transfer date’). (2) Such an agreement shall not have effect unless the landlord is a party thereto, and, if the consent of any superior landlord would have been required to an assignment of the previous contractual tenancy, the agreement shall not have effect unless the superior landlord is a party thereto. 77 (3) If the outgoing tenant is the statutory tenant by virtue of his previous protected tenancy, then, subject to subparagraph (6) below, this Act shall have effect, on and after the transfer date, as if the incoming tenant had been a protected tenant and had become the statutory tenant by virtue of his previous protected tenancy. (4) Subject to subparagraphs (5) and (6) below, if the outgoing tenant is a statutory tenant by succession, then on and after the transfer date — (a) this Act shall have effect as if the incoming tenant were a statutory tenant by succession, and (b) the incoming tenant shall be deemed to have become a statutory tenant by virtue of that para of Part I of this Schedule by virtue of which the outgoing tenant became (or is deemed to have become) a statutory tenant. (5) If the outgoing tenant is a statutory tenant by succession, the agreement may provide that, notwithstanding anything in subparagraph (4) above, on and after the transfer date, this Act shall have effect, subject to subparagraph (6) below, as if the incoming tenant had been a protected tenant and had become the statutory tenant by virtue of his previous protected tenancy. (6) Unless the incoming tenant is deemed, by virtue of subparagraph (4)(b) above, to have become a statutory tenant by virtue of paragraph 6 or 7 of Part I of this Schedule, paragraphs 5 to 7 of that Part shall not apply where a person has become a statutory tenant by virtue of this paragraph. Thus the scheme of this paragraph is that under an agreement which complies with subparas (1) and (2), the incoming tenant steps into the shoes of the outgoing tenant, subject to subpara (6), which provides that there can be no succession to an incoming tenant who has replaced a statutory tenant by succession and no second succession to an incoming tenant who has replaced the original statutory tenant. The judge rejected Josephine’s claim on the ground that it was not conceptually possible for two persons to be the statutory tenant. It followed that any agreement purporting to replace Mrs Mahoney by herself and Josephine must have been ineffective. He cited the decision of this court in Dealex Properties Ltd v Brooks [1966] 1 QB 542, which decides — as indeed the language of Part I of Schedule 1 to the Rent Act 1977 makes plain — that only one person can become a statutory tenant by succession. But I think it is taking that decision too far to say that it declares multiple statutory tenants to be conceptually impossible. One can, in my view, have more than one statutory tenant on the termination of a protected tenancy. Section 1 of the Rent Act 1977 says: Subject to this Part of this Act, a tenancy under which a dwelling-house (which may be a house or part of a house) is let as a separate dwelling is a protected tenancy for the purposes of this Act. Any reference in this Act to a protected tenant shall be construed accordingly. In the case of a protected tenancy held by two or more joint tenants, it seems to me that the singular must include the plural and that all are protected tenants. Section 2(1)(a) then 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 … Again it seems to me that if two or more joint protected tenants continue in residence, each of them will become a statutory tenant. These conclusions are supported by the decision of this court in Lloyd v Sadler [1978] QB 774*. In that case a protected tenancy of a flat in Kensington was held jointly by two young ladies, one of whom left to be married before the term expired. The landlord argued that unless both continued to occupy the flat as their residence, neither could become a statutory tenant. Megaw LJ rejected this argument, saying that ‘the phrase ‘the tenant’ where there is a joint tenancy, is to be read as meaning ‘the joint tenants or any one or more of them”. It is true that the facts in Lloyd v Sadler resulted in a single statutory tenant. I think however that it necessarily follows from the reasoning that if both ladies had continued to occupy, both would have become statutory tenants and that on one ceasing to reside there, the other would have continued as a statutory tenant. *Editor’s note: Also reported at [1978] 1 EGLR 76. I therefore do not accept that joint statutory tenants are a conceptual impossibility. It must of course be remembered that a statutory tenancy is not a legal estate which can be jointly held with all the ordinary consequences of a joint tenancy. It is a purely personal right to retain possession of the property. Joint statutory tenants are therefore nothing more than two or more persons, each of whom has a personal right to remain in occupation. On the other hand, although the point does not arise in this case, it may be necessary to apply the analogy of survivorship to make sense of the succession provisions in Part I of Schedule 1, so that they do not take effect unless only one statutory tenant remains in occupation. I therefore do not think that it was legally impossible to have an agreement under which Josephine and her mother were substituted for her mother as statutory tenants. It may be that they could not be deemed to become statutory tenants by succession under para 13(4) because a statutory tenant by succession must, as we have seen, be a single person. But there is no reason why the parties should not have agreed under subpara (5) that Mrs Mahoney and Josephine should be deemed to have become statutory tenants by virtue of the previous protected tenancy. The real difficulty which faces Josephine, as it seems to me, is that the correspondence upon which she relies does not constitute an agreement which satisfies para 13(1), let alone para 13(5). Para 13(1) requires an agreement in writing between Mrs Mahoney and Josephine, to which by para 13(2) the landlord must be a party. The correspondence passing between Mrs Mahoney and the landlords, together with the evidence that Josephine drafted the letter and other surrounding circumstances, is no doubt powerful evidence of an agreement between Josephine and her mother. But it is not, in my judgment, an agreement in writing between them. Nor does the correspondence purport to be consent to an agreement to transfer the statutory tenancy. It is simply confirmation that a joint tenancy already exists. This brings me to the alternative argument for Josephine, namely that the landlords are estopped from denying that she was a joint statutory tenant. She says that the letters from Mr Saxby and Mr Stevens were representations made on behalf of the landlords, on the strength of which she acted by refusing the offer of a council flat. There was a challenge to Mr Saxby’s authority which the judge rejected. He also held, accepting Josephine’s evidence, that she had acted in reliance upon his statement in deciding to reject the council flat and thereby lost her priority. But he said that she could not rely upon estoppel because this would be to ‘compel the landlords to recognise a state of affairs which Parliament itself has forbidden’, citing J&F Stone Lighting & Radio Ltd v Levitt [1947] AC 209 at p216. If the judge had been right in think that joint statutory tenants were conceptually impossible and therefore could not come into existence by agreement, then I would agree that they could equally not be brought into existence by estoppel. The true principle, as it seems to me, is that a party cannot be estopped from denying something to which, on the proper construction of the statute, he could not have agreed in the first place. Parties cannot contract out of the Rent Act and therefore cannot be estopped by a representation that the Rent Act will not apply. Likewise, the rent officer only has jurisdiction in respect of regulated tenancies and the parties cannot agree or be estopped from denying that he shall have jurisdiction over a tenancy which is not regulated. But in respect of those matters upon which the parties are at liberty to agree, there seems to me no reason why the ordinary doctrine of estoppel should not prevent a party from denying that he has so agreed. Mr Saxby’s letter was a representation that the landlords recognised Mrs Mahoney and Josephine as joint statutory tenants. That was a state of affairs to which the landlords could under para 13 have lawfully agreed. In my judgment, the representation upon which Josephine acted estops them from denying that they did so. It is true that the effect of the estoppel is to allow the transfer of the statutory tenancy to take place without the written agreement between outgoing and incoming tenant required by para 13(1). It seems to me, 78 however, that this is a formality for the protection of the individual parties rather than one imposed in the public interest. The parties are therefore entitled to waive it: compare Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 and see Spencer Bower and Turner, Estoppel by Representation (3rd ed 1977) at pp138–144. Mrs Emma Mahoney has no further interest in the matter. Josephine plainly has no wish to rely on the absence of writing and the landlords must, in my view, be deemed to have waived the formality by their representation that the joint statutory tenancy existed. I would therefore allow the appeal and declare that Miss Josephine Mahoney is a statutory tenant. SAVILLE LJ agreed and did not add anything.