Springfield Investments Ltd v Bell

Rent Act 1977, Schedule 15, Case 16 — Cottage required for agricultural worker — No issue as to any of the conditions of Case 16 except 16(b) — Whether ‘not later than the relevant date, the tenant was given notice in writing that possession might be recovered under this Case’ — No question as to relevant date but an issue as to whether the tenant was given ‘notice’ that possession might be recovered — Whether a certificate of fair rent constituted notice — Appeal from decision of county court judge, who held that the plaintiff landlords were entitled to possession of the cottage Both before the county court judge and the Court of Appeal the matter was reduced to the single issue of the notice given under Case 16(b) — The tenant had never been employed by the landlords and the court was satisfied that the cottage in question was required for occupation by a person to be employed by the landlords — The specific question which had to be determined was whether a certificate of fair rent issued by a rent officer could be regarded as constituting ‘notice’ for the purpose of Case 16(b) — At first sight it seems unlikely that it could qualify for that purpose — A certificate of fair rent is, after all, a document obtainable by an owner to enable him to discover in advance what rent he will be able to recover legitimately under the Rent Act on letting a dwelling — It is the first stage in a process which has to be completed by the actual registration of a rent in pursuance of the certificate — How could that be notice to a tenant that possession might be recovered under Case 16?  — Nevertheless, both the county court judge and the Court of Appeal held that it did constitute such notice It appears that a copy of the certificate of fair rent, which is a landlord’s document, was given to the tenant at the time when she received the keys to the cottage — The document certified that £12 per week or £624 pa would be a fair rent for the cottage under a regulated tenancy — The certificate identified and described the dwelling, referred to the application form for particulars of furniture, mentioned that there were no services provided and, under ‘Other terms of the proposed tenancy’, set out the following information: It is proposed to let on a regulated tenancy basis, subject to the provisions of Case 16, 15th Sch Rent Act 1977 (whereby repossession could be obtained to house an agricultural worker, employed, or to be employed by the Landlord), Standard repair etc terms, Landlord responsible for outside, structure and outside painting; tenant for inside [decorations] & garden and payment of rates direct. The county court judge pointed out that no specific form was prescribed for the notice under Case 16(b) and held that the giving of the copy certificate, which referred to the Case and stated that repossession could be obtained under its provisions, did all that was required — It was not necessary for the landlords to prove that particular attention had been drawn to the reference to the recovery of possession On appeal objections were raised by the appellant tenant that a certificate for the benefit of the landlords was not a notice to the tenant; that the contents of the certificate were not adequate as a notice; that the notice required by Case 16 was intended to state specifically that possession might be recovered under the 1977 Act; that the document should make it abundantly clear that it would produce a compulsory situation so far as the tenant was concerned; and that the plain purpose of the notice was to enable the tenant to appreciate that she would not be obtaining security of tenure under the letting — The authorities of Fowler v Minchin and Bradshaw v Baldwin-Wiseman were cited — The Court of Appeal rejected these objections — Although the document was headed ‘Certificate’, it did draw attention specifically to Case 16 and the possibility of the recovery of possession — There was no prescribed form of notice and it should be observed that Case 16(b) itself mentioned ‘notice’ and not ‘a notice’ — The court considered that the giving of the copy certificate to the tenant satisfied the statutory conditions — Appeal dismissed The following cases are referred to in this report. Bradshaw v Baldwin-Wiseman (1985) 49 P&CR 382; [1985] 1 EGLR 123; 274 EG 285; 17 HLR 260, CA Fowler v Mirchin [1987] 1 EGLR 108; (1987) 282 EG 1534; 19 HLR 224, CA Pittalis v Grant [1989] 3 WLR 139; [1989] 2 All ER 622; [1989] 2 EGLR 90; [1989] 28 EG 126 Spurling (J) Ltd v Bradshaw [1956] 1 WLR 461; [1956] 2 All ER 121; [1956] 1 Lloyd’s Rep 392, CA This was an appeal by the tenant, Caroline Jane Bell, from a decision of Judge McNaught, at Gloucester County Court, granting the plaintiff landlords, Springfield Investments Ltd (the respondents to the appeal), an order for the possession of Shadyside Cottage, Hyde Lane, Whitminster, Gloucestershire. Charles J D Auld (instructed by A E Smith & Son, of Stroud) appeared on behalf of the appellant; Martin Rodger (instructed by Hyde Mahon Bridges) represented the respondents. Giving judgment, STOCKER LJ said: This is a defendant’s appeal from a decision of His Honour Judge McNaught made on November 20 1989, whereby he ordered that the plaintiffs recover possession of premises known as Shadyside Cottage, Hyde Lane, Whitminster in the County of Gloucester, on or before February 20 1990. The defendant seeks an order that the claim for possession should be dismissed. The facts, shortly stated, are that the cottage in question was let to the defendant in about September or October 1981 at a rental of £12 a week. Prior to this letting the defendant had occupied the cottage next door, which was called Sunnyside Cottage, rent-free as an employee in agriculture of the plaintiffs’ predecessor in title. When this employment came to an end, upon the whole farm of which those two cottages form part being sold to the plaintiffs, the defendant moved in to Shadyside and a fair rent was fixed by the rent officer. The claim for possession is brought pursuant to an amended particulars of claim, grounds for possession being Case 16 of Schedule 15 to the Rent Act 1977. There had earlier been abortive proceedings for possession in the county court, brought under the particulars of claim in their original unamended form, in which possession was claimed upon different grounds and in respect of which the notice to quit was defective. No more need be said of those proceedings. The present claim, as has been stated, is based upon Case 16, Schedule 15 to and section 98(2) of the Rent Act 1977, that section rendering mandatory an order for possession if the circumstances of the case fall within Case 16. An effective notice to quit has in fact been served so far as these proceedings are concerned. Case 16 of Schedule 15 to the 1977 Act reads: Where the dwelling-house was at any time occupied by a person under the terms of his employment as a person employed in agriculture, and (a)  the tenant neither is nor at any time was so employed by the landlord and is not the widow of a person who was so employed, and (b)  not later than the relevant date, the tenant was given notice in writing that possession might be recovered under this Case, and (c)  the court is satisfied that the dwelling-house is required for occupation by a person employed, or to be employed, by the landlord in agriculture. For the purposes of this Case ’employed’, ’employment’ and ‘agriculture’ have the same meanings as in the Agricultural Wages Act 1948. It was conceded at the trial that the opening sentence of the Case applied to the premises, which had previously been occupied by a person under the terms of his employment as a person employed in agriculture. Para (a) was admitted on the pleadings and the learned judge found as a fact that the provisions of para (c) were satisfied. There is no appeal against that finding. The issue before the county court and before this court therefore relates to para (b). As I have already stated, the rent was fixed by the rent officer and his certificate dated September 7 was sent to the plaintiffs. It is therefore necessary to consider the terms of that certificate. It appears on pp 59 and 61 of the bundle, p 61 being in fact the reverse of p 59, and the relevant part of the certificate, which is headed: ‘Rent Act 1977, Rent Officer Service’ and with the main heading ‘Certificate of Fair Rent’, reads: This is to certify that £12 a week [or] £624 per annum (exclusive of rates) would be a fair rent for the dwelling-house referred to in Part I of the Schedule overleaf under a regulated tenancy on the other terms indicated in Part III of the said Schedule. Then overleaf on p 61 of the court bundle, there is the heading: ‘Schedule’. The premises are stated as being Shadyside, Hyde Lane, Whitminster, Gloucester, and Part I gives the address of the premises and various other matters related to the accommodation contained within it. It also states that there is a ‘Small garden front, small lawn at back. Car space in farm-yard at side via farm gate off Lane’, and other matters. ‘Part II: Furniture to be provided as specified in the application, Cupboards in Kitchen, Landlords fixtures’. Services provided: none. ‘Part III’ — this is the crucial part of this document — ‘Other terms of proposed tenancy’. It is then stated: It is proposed to let on a regulated tenancy basis, subject to the provisions of Case 16, 15th Sch Rent Act 1977 (whereby repossession could be obtained to house an agricultural worker, employed, or to be employed by the Landlord), Standard repair etc terms, Landlord responsible for outside, structure and outside painting; Tenant for inside [decorations] & garden and payment of rates direct. Those were the relevant terms of the document in which it is said there was a notice which complied with Case 16. There was a conflict of evidence at the trial regarding whether and in what circumstances that document was served by the plaintiffs upon the defendant. The judge held that the document was handed to the defendant at the same time that she received from the plaintiffs the keys, and that was on or before September 14. In that context reference was made to certain letters which appear at pp 55 and 57 of the bundle. At p 55 there is a letter dated September 2 1981 by Mr Tiley, which reads: Dear Miss Bell, Further to our conversation wherein you said you are prepared to move into Shadyside at a rent to be agreed by the Fair Rents Officer. I have spoken to the Fair Rents Officer and he will be visiting the property on Thursday next at about 3.30pm and he has promised to let me have his Certificate within a few days. As soon as I receive this, I will call and see you with it and perhaps we can arrange a date when you will be moving. At p 57 there is a letter dated September 14 1981, also by Mr Tiley. It is addressed to the defendant and reads: Dear Miss Bell, We confirm giving you the keys of Shadyside, also a copy of the Fair Rents Officers report by Mr W H Tiley. That means of course the Mr Tiley who gave the keys and the report. We would suggest that the day for taking occupation is the 3rd October. September 14 was in fact a Monday. By para 2(d) of Part III of Schedule 15 to the Act, ‘the relevant date’ means the date of commencement of the tenancy. So that on the judge’s findings the document, if it was a notice in writing that possession might be recovered under the Case for the purpose of para (b), complied with the time requirement of that paragraph. The issue, therefore, is whether the rent officer’s certificate, by reason of Part III of the schedule to it, the terms of which have been read, was a notice for the purposes of that paragraph. The learned judge found facts relating to the delivery of the document. He said: The question is: was this sufficient notice? The rules do not require a specific form and it is not suggested by the defendant that the form of words in this particular case is ineffective. I think that Miss Bell has forgotten about this particular document. I think that she has been absolutely honest in her evidence but she has forgotten. There is no particular form required, it is simply sufficient to show that the tenant was given notice in writing. I find that in this particular case the tenant was given notice in writing, and that the notice that was given was sufficient to satisfy Case 16. It is not necessary for the landlord to prove that he brought the tenant’s attention to the specific terms of that notice. I, therefore, conclude that the landlord has established his ground for possession and I, therefore, order possession. There are two grounds of appeal. First, that the judge erred in law in holding that the plaintiff had given to the defendant a notice in writing that possession might be recovered under Case 16 in Schedule 15 to the Rent Act 1977. It is contended that the learned judge should have held that such documents as the plaintiff had given to the defendant did not constitute a notice required by Case 16. Second, further or alternatively there was no or no sufficient evidence upon which the learned judge could find that the defendent had been given notice in writing as required by the said Case 16. At the hearing before us, Mr Auld has made it clear that his second ground of appeal is not a challenge to the learned judge’s finding that in the physical sense the document was given to the defendant, but is really an alternative formulation of his first ground and really relates to the adequacy of the contents of the notice rather than its physical delivery. There was an issue raised by the respondents in their skeleton argument as to the jurisdiction of the court, on the grounds that the construction of the document in question had never been argued before the learned judge and accordingly raised a point of law which this court would have had no jurisdiction to consider. That aspect of the matter was not pursued, in the light of the decision in Pittalis v Grant [1989] 3 WLR 139*, and it was conceded by Mr Rodger that the matter became one of discretion of the court. Accordingly, in the exercise of discretion we heard the appeal on the merits. *Editor’s note: Also reported at [1989] 2 EGLR 90. Mr Auld’s submission is that the certificate to which reference has been made does not constitute notice for the purposes of Case 16 and that the judge’s finding to the contrary is wrong, and not in accordance with authority, which supports his submissions. In that connection he cited before us the case of Fowler v Minchin (1987) 19 HLR 224† . That was a case concerned specifically with Case 16 of Schedule 15 to the Act. At p 231 Stephen Brown LJ (as he then was) said: It is quite true that the notice does not have to follow any particular form, but in my judgment it must state quite specifically that possession might be recovered under the provisions of the Act: that is to say, to make it clear that a situation would obtain which would be a compulsory situation so far as the tenant was concerned. In my judgment the alleged term of the so called agreement that the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker is no more than a voluntary undertaking that he would do so. † Editor’s note: Also reported at [1987] 1 EGLR 108. In fact the factual matrix upon which Fowler v Minchin then was concerned is set out on pp 228 and 229 of the report and is relevant, in my view, to the ratio of the decision. Stephen Brown LJ said: The position at the trial was this. Until the actual hearing commenced or was about to commence the defendant’s counsel had had no notice that reliance was to be placed upon a specific written document which it would be alleged complied with the requirement of sub-paragraph (b) of Case 16. During the course of the case, therefore, additional further and better particulars of the116 amended particulars of claim were given by the plaintiff. They are handwritten and we have a photostat copy of them: 1. Date of written notice During the week prior to July 29 1978 ie in the week before four weeks prior to the date shown in the Rent Book. 2. When and where it was given to the Defendant — and that is answered — 3. — this is the crucial part of the matter — Exactly what it said That the defendant was to keep the premises in a good state of repair. That the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker, — and lastly — That the rent was to be paid weekly and was to be kept on a level with Tirley council house rents. Thus the allegation, as I understand it, was that there was compliance with Case 16 by reason of the agreement that the defendant would vacate on 28 days’ notice if the plaintiff required it for a farm worker. It is clearly noticeable that in that case it was not even contended that there had been any express reference to Case 16 of Schedule 15 to the Act. I find a little bit of difficulty in understanding how it could even have been arguable on those facts that there was such a compliance, but in so far as it manifestly was argued, then the passage of the judgment that I have read clearly indicates the ratio of the decision. The second case upon which reliance is placed and which has been cited to us is the case of Bradshaw v Baldwin-Wiseman (1985) 49 P&CR 382*. That was a case which concerned Case 11 of Schedule 15, which imported some element of discretion, in that possession could be ordered if it was just and equitable so to do, and it was in that context that Griffiths LJ said at p 385: It is, however, 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. *Editor’s note: Also reported at (1985) 1 EGLR 123. Mr Auld submits that the following propositions are to be deduced from those authorities, to which reference has been made: first, that Case 16 notice does not have to follow any particular form; second, it must state specifically that possession might be recovered under the provisions of the Rent Act 1977, and must be such as to make it clear that a compulsory situation would obtain so far as the tenant was concerned; and third, the purpose of the notice is to enable the tenant to appreciate that she is not obtaining security of tenure under the letting. He therefore submits, in the light of those principles, that the judge was wrong in law in certain respects. First he says that the notice upon which the landlord relies is not a notice at all. It is in fact, he submits, a certificate and indeed is so headed. In that context it seems to me relevant to observe that para (b) of Case 16 does not require ‘a’ notice in writing. It requires notice in writing that possession might be recovered. Second, it is submitted by Mr Auld that the wording itself in the third part of the schedule to the document on p 59 commences with the words, ‘It is proposed’, and he says that the wording does not in any event therefore constitute notice in any sense because it is preceded by those words ‘It is proposed’ and that it represents therefore, at the highest, the landlords’ proposals as to the terms upon which the letting would be made. However, it does seem to me that since the notice has to be given on or before the commencement of the tenancy, such a notice in the first instance will often, if not always, be initially a proposal and, second, in my view, one has to look at the whole of the circumstances in which the document came into existence and its form. If one refers to the facing page of the document on p 59, one sees that at the very outset, under what might be called the certificate itself, there is reference to the fact that it is to be a regulated tenancy on the other terms indicated in Part III of Schedule 15, and moreover the dwelling-house is the dwelling-house referred to in Part I of the schedule overleaf. It seems to be inevitable, therefore, that anybody who read that document at all with any form of understanding would necessarily look at the schedule to see the identity and full incidents of the property that was being let to them. For example, it includes the fact that there is a car space in the farm-yard at the side and the entrance to it through the farm gate off the lane. That is a specific incident of the premises which were being let, and without reference to Part I of the schedule there would, or at any rate might be, a conflict as to the precise nature and extent of the premises let. Part II describes the furniture specified and includes cupboards in kitchen and landlord’s fixtures. The services provided are stated to be nil and when one comes to Part III there is what is contended to be a notice in accordance with the terms of Case 16. It is of course the question at issue as to whether it is or not, but I would refer again to the wording that it is ‘let on a regulated tenancy basis, subject to the provisions of Case 16, 15th Sch Rent Act 1977’, so that there is an express and specific reference to that Case. But it goes further, because there is an explanation in brackets of the substance of the effect of Case 16. For the words appear, ‘whereby repossession could be obtained to house an agricultural worker, employed, or to be employed by the Landlord’. Furthermore, there was no formal tenancy agreement. The certificate, the contents of which, so far as was relevant, have already been read, was handed over at the same time that the keys were handed over, and the evidence of Mr Tiley, which appears on p 39 of the notes of evidence, says: I didn’t know what to charge her so we got the rent officer, and he fixed it at £12 per week. He sent [the documents] through. Sent them to my company. Then we agreed date. I gave her a copy of the [document] when I gave her the keys. I [looked] at [the] two copy letters, [of] 2nd Sept 1981 and 14th Sept 1981, — which have been read — posted to Miss Bell at Sunnyside. I did call and give her a copy of the certificate. I photocopied both sides of certificate. On back is reference to Case 16. Rent officer put it in because we might need it in the future. So that the circumstances in which that document was handed over were concurrent with the handing over of the keys and the agreement of the date of commencement of the tenancy. The tenant went into possession and continued to pay the rent and to occupy the premises, and was of course still in occupation when the possession order was made. It seems to me that she must have been occupying as tenant on the terms of the document, albeit it is headed ‘certificate’. The second way in which Mr Auld puts his case is that although there may be circumstances in which a landlord can rely upon Case 16 notice although it is contained in some other document, such circumstances will be rare and such cases will comply with the requirements of Case 16 only if the notice contained in that other document reasonably brings to the attention of the tenant that the notice relied upon indicates that possession might be required under Case 16, and he argues that this was not the case here, (1) because it is headed ‘certificate’, and it may well be that the recipient, the defendant in this case, would not read any further than the first few lines to see what the rent had been assessed at; (2) that it was only a proposal — that really repeats the argument already considered — and that it is contained at the end of a document, and that accordingly sufficient attention would not have been drawn to the tenant which might reasonably indicate to her that possession might be required under Case 16. In my view, those arguments cannot prevail either. First, by the acceptance of the keys on entry into possession the tenant did so on the terms of that certificate, and those terms of course include conditions both for the benefit of the tenant and for her detriment. It was brought to her notice since it did contain those beneficial and detrimental conditions. Second, there is no form required for notice under Case 16. As I have already observed, notice is not necessarily ‘a’ notice. The Act and the schedule could have specified a standard or statutory form, but it did not do so. This document, though headed ‘certificate’, did by its format draw attention specifically to Case 16 in Schedule 15. It seems doubtful if indeed these questions were argued below, but the learned judge found that the notice was sufficient to satisfy Case 16 and with that finding I agree. Accordingly, for these reasons I would dismiss this appeal. Agreeing, STAUGHTON LJ said: Two points have been argued by Mr Auld for the tenant. First he submitted that the certificate spoke of terms which might be included, or were expected to be included, in some future tenancy agreement, and not terms actually included in an agreement. In point of form, he is correct. The certificate had to state terms which might be included in a future agreement, because117 they might have a bearing on what was a fair rent. But on the facts of this case, those became the actual terms of the tenancy agreement when a copy of the certificate, with the keys, was handed by the landlord to the tenant. At that moment the proposed terms became actual terms and the tenant should reasonably have appreciated that. The second point has given me rather more difficulty. The document in question, on its face, purports to be a certificate of what is a fair rent and not notice of anything. Mr Auld submits that to qualify under Case 16 a notice must be such, in point of form, as is reasonably sufficient to bring to the attention of the tenant that the landlord will by law be entitled to recover possession for an agricultural worker. There must be some such requirement as Mr Auld suggests. A notice would be bad if it were in such small print as to be legible only by those with the sharpest eyes or the strongest spectacles. It would be bad if it were buried in the middle of some document on a quite different topic, or written in a foreign language which the tenant did not understand, or enclosed in an envelope which had the appearance of containing junk mail. One is reminded of what Denning LJ said in J Spurling Ltd v Bradshaw [1956] 1 WLR 461 at p 466 in relation to exemption clauses: Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient. Or one can compare the Consumer Credit Act and the regulations made under it, which provide that some particulars of a consumer credit agreement have to be inserted in a box with a certain degree of prominence. Parliament has not followed that in the Rent Act 1977. Nor has Parliament said, as it sometimes does, that notice under Case 16 must be in a prescribed form, or as Parliament has on occasion said, must be in ordinary language which the tenant can understand. I am inclined to think that the notice must be given reasonable prominence, such that it is fairly drawn to the tenant’s attention. There may be difficulties when the tenant is blind or illiterate or understands only a foreign language, but I need not say anything about those cases. Was the notice fairly drawn to the tenant’s attention in this case?  I have had some doubts on that point. It is contained in a document which ostensibly deals on p 1 with what is a fair rent. On the other hand it is evidently a legal document and one which has to do with the tenant’s occupation of the property. I would have wished to have had the county court judge’s view on this point. He, after all, knows the sort of people who take tenancies of cottages which might be required for the agricultural population of Gloucestershire. If the judge had reached a conclusion one way or the other as to whether this notice was fairly drawn to the tenant’s attention, I should have been very slow to differ from it. But he did not reach a conclusion because the point was not argued in that form before him. Fortunately, as Stocker LJ has said, we are now free from the old rule that points of law could not be argued at all in the Court of Appeal on appeals from the county court unless they had been raised in the court below. See Pittalis v Grant [1989] 3 WLR 139. There is still a discretion whether to allow a point of law to be argued if it has not been argued below, and this court does not normally allow a new point of law to be argued if some further finding of fact is necessary. It is, however, not so much a further finding of fact which would have been welcome in this case as the judge’s view as to whether the information in Part III of the certificate fairly drew to the tenant’s attention the landlord’s possible right to recover possession under Case 16. On balance, I agree that it did fairly draw that to the tenant’s attention. Accordingly, I, too, would dismiss this appeal. The appeal was dismissed with costs; the order for costs not to be enforced without further order; legal aid taxation for the defendant; possession to take place in 28 days, unless time extended by consent.