Walcott v Jones and another

Landlord and tenant – Periodic tenancy — Possession order – Appellant landlord serving section 21 notice on respondents requiring possession of property – Respondents contending notice invalid – District judge striking out possession claim – Appellant appealing – Whether notice falling foul of section 20B(1) of the Housing Act 1988 — Appeal allowed The second respondent was the appellant’s mother and the first respondent had been in a domestic relationship with the appellant since 1993. The respondents lived at 9 Jonson Close, Mitcham, Surrey, of which the appellant was the registered proprietor. The respondents sought, amongst other remedies, a declaration under the Trusts of Land and Appointment of Trustees Act 1996 that they were the sole beneficial owners of the property so that they were entitled to continue to occupy the property. In June 2016, the appellant served on the respondents a notice pursuant to section 21 of the Housing Act 1988 stating that she required possession of the property on the basis that the property was let by her to the respondents on an oral monthly tenancy from 30 August 2007. Although that was in dispute between the parties, for the purpose of the respondents’ application to strike out the claim for possession, the factual premise that they occupied by virtue of an assured shorthold tenancy (AST) had to be accepted as correct. The respondents contended that the notice was invalid because it did not comply with the requirements of section 21A of the 1988 Act and did not provide the information required by section 21B, both of which had been introduce into the 1988 Act by sections 38 and 39 of the Deregulation Act 2015. The issue was whether the requirements of sections 21A and 21B of the 1988 Act applied to the June notice. That depended on the correct interpretation of section 41 of the 2015 Act which provided that a provision of sections 33 to 40 applied only to an assured short hold tenancy of a dwelling-house in England granted on or after the day on which the provision came into force. That, in turn, depended on the position at common law as to when a tenancy was granted. After the 2015 Act came into force on 1 October 2015, in order to serve a valid section 21 notice, the appellant had to obtain a gas safety certificate and an energy performance certificate and provide information about the rights and responsibilities of landlord and tenant under an assured shorthold tenancy. The appellant accepted that she had not done so. The respondents accepted that in relation to tenancies “granted” before 1 October 2015 those omissions would not have rendered the notice invalid. A deputy district judge struck out the appellant’s possession claim on the basis that the section 21 notice fell foul of the 2015 Act. The appellant appealed. Held: The appeal was allowed. (1) The question was how the statutory phrase “granted on or after the date on which the provision comes into force” in section 41(1) was to be interpreted; and whether the tenancy in this case was “granted”, and only “granted”, on 30 August 2007 or “granted” on another 104 occasions until it was terminated by the purported section 21 notice. The tenant whose possession extended from one period to another without either having given notice or received notice, would be unlikely to think in terms of having been “granted” a series of leases. The answer to this appeal could not depend entirely upon what the tenant might think, although it was never a good idea for legal analysis to move too far away from “practical reality”. (2) As some of the early authorities recognised, it was inherent in the agreement by which a periodic tenancy was “granted” that if notice was not given in accordance with the terms of that agreement, the tenancy would not be limited to the original period and would continue. Whether one regarded that as a deemed re-letting or an extension of the original, in the end the answer to the question of statutory interpretation was to ask whether either a deemed reletting or an extension meant that a new tenancy had been “granted”. In neither case had a tenancy been granted nor had Parliament intended a deemed re-letting or an extension to be a granting of a tenancy. The deputy district judge had erred in law in reaching the opposite conclusion: Mexfield Housing Co-operative Ltd v Beresford [2011] UKSC 52; [2011] 3 EGLR 115 considered. (3) Section 41(2) created a necessary exception to section 41(1) making it clear that the statutory construct of creating a periodic tenancy where the tenant remained in possession after the expiration, by the effluxion of time after the statutory commencement date of the 2015 Act, of a fixed term tenancy did not fall within section 41(1). Parliament intended that the creation of a new tenancy should not be regarded as the “granting” of a tenancy. Moreover, the “cut-off” provision of section 41(3) would be unnecessary if the respondent’s argument was correct. Section 41(2) was dealing with the creation of the tenancy by something other than express agreement. It dealt with a tenancy which was deemed to arise on the happening of certain events; in that context the deeming arose as a result of statutory intervention. The “practical reality” was that, at the time a tenant entered into possession pursuant to an agreement which had created or “granted” the tenancy, it was impossible to be certain how long that possession would last save that it was certain the period agreed would be the minimum period of possession. Carl Fain (instructed by Hodge Jones and Allen LLP) appeared for the appellant; Francis Ng (instructed by Jamieson Alexander Solicitors) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Walcott v Jones and another.