Williams and another v Mate and another

Rent Act 1977 — Position following death of resident landlord — Section 12(1) and Schedule 2 — Effect of action by rent tribunal — Landau v Sloane — Deceased resident landlord’s executor assented directly in favour of two beneficiaries under the will to hold the landlord interest in trust for themselves and a third beneficiary — The two trustee-beneficiaries served a notice to quit on the tenants expiring within 12 months of the death — Rent tribunal deferred the operation of the notice to quit until after the end of the 12 months, but without appreciating that this action might affect the rights of the parties — Held that in the events which had happened the tenants became entitled to a statutory tenancy under paragraph 7 of Schedule 2 to the Act of 1977 on the day after the anniversary of the deceased resident landlord’s death — The amendments made to section 12(1) and Schedule 2 by section 65 of the Housing Act 1980 did not apply as the statutory tenancy had arisen by virtue of paragraph 7 of the Schedule long before the amendments came into operation on November 28 1980 — Rent tribunal in present case had done, but not deliberately, what in Landau v Sloane was92 characterised as an ‘abuse of power’ if done deliberately — Question raised by Cumming-Bruce LJ as to whether there might be grounds for judicial review even though the tribunal did not appreciate what it was doing — Appeal from county court judge’s decision in favour of tenants dismissed, but decision corrected on two points — The periods mentioned in paragraph 1(c) of Schedule 2 are not mutually exclusive, but can be added together; and ‘trustees as such’ are not confined to trustees of an inter vivos settlement or a family arrangement but can apply to trustees under a will or intestacy This was an appeal by Miss Dorothy and Miss Irene Williams, landlords of a flat at 26 Fitzmaurice Road, Christchurch, Dorset, from a decision of Judge Sheila M D McKinney at Bournemouth County Court in favour of the tenants, Brian Mate and Susan Mate. The appellants had been plaintiffs in an action for possession of the flat against the defendants, Mr and Mrs Mate, the respondents to the present appeal. Peter Langan (instructed by Wedlake, Bell, agents for Oscar H Whittingham & Sons, of Bournemouth) appeared on behalf of the appellants; Richard Harper (instructed by John W Richardson & Co, of Christchurch) represented the respondents. Giving the first judgment at the invitation of Cumming-Bruce LJ SLADE LJ said: This is an appeal from a judgment of Her Honour Judge McKinney given in the Bournemouth County Court on December 3 1981 whereby she ordered that an action for possession should be dismissed and that the plaintiffs should pay the taxed costs of the defendants. The plaintiffs in the action were Miss Dorothy Williams and Miss Irene Williams. The defendants were Mr Brian Mate and Mrs Susan Mate. The relevant facts are not in dispute. By a written agreement of August 23 1972 the late Mrs Dorothy Whitlock let to the defendants the first-floor flat at 26 Fitzmaurice Road, Christchurch, Dorset, together with certain furniture and fittings for the term of one year from August 28 1972 and thenceforth from month to month until terminated by either party giving to the other one month’s written notice expiring on a rent day, at the weekly rent of £5.46. The tenancy granted by the agreement was a Part VI contract within the meaning of the Rent Act 1968 (‘the 1968 Act’), relating to furnished lettings. The flat, which I will call ‘the demised flat’, forms part only of the building, 26 Fitzmaurice Road, which is not a purpose-built block of flats. On August 14 1974, the Rent Act 1974 (‘the 1974 Act’) largely came into force. It brought residential furnished tenancies into the full protection of the Rent Acts by making them ‘protected tenancies’. The 1974 Act, however, contained special provisions for tenancies of dwellings which form part of larger premises and where the landlord himself resides in another part of them. By virtue of section 16(1) and Schedule 3, paragraph 1, such furnished tenancies which were in existence when the 1974 Act came into force were not converted into protected tenancies but remained subject to the jurisdiction of the rent tribunal under Part VI of the 1968 Act. On August 14 1974 Mrs Whitlock occupied as her residence another dwelling which formed part of the same building as the demised flat, namely the ground-floor flat at 26 Fitzmaurice Road. In the circumstances the defendants’ tenancy did not on August 14 1974 become a ‘protected tenancy’, but became subject to the provisions of the 1974 Act with regard to tenancies granted by resident landlords. At all times after August 14 1974 until her death, Mrs Whitlock continued to occupy the ground-floor flat as her residence. She died on March 16 1979. By her will dated December 22 1970, she appointed her son-in-law, Mr David Morris, to be her executor. By clause 3 of this will she devised both the flats to Mr Morris upon trust to sell them and to divide the net proceeds of sale and the rents and net profits until sale between such of her three daughters, Miss Dorothy Williams, Miss Irene Williams (the plaintiffs) and Mrs Brenda Morris, as should be living at her death; if more than one, equally between them. In the event all of them survived her. On June 1 1979 probate of her will was granted to Mr Morris. As soon as he was satisfied that he no longer required the demised flat for the purposes of administration, the obvious conventional course as a matter of conveyancing would have been for him, as personal representative, to execute an assent in respect of the demised flat in his own favour as trustee, to hold it upon the trusts of clause 3 of the will, and then to appoint one or two persons to act as trustees in addition to or substitution for himself. The evidence, however, suggests that he was in poor health. For whatever reason, on October 19 1979, before he had taken any steps as personal representative to obtain vacant possession of the demised flat, he executed a written assent in respect of it in favour of the plaintiffs, Miss Dorothy Williams and Miss Irene Williams, who were therein defined as ‘the trustees’. By clause 1 of this document he assented to the vesting in the trustees of the demised flat for an estate in fee simple upon trust for sale. By clause 4 the trustees declared that the net proceeds of the sale and the net rents and profits until sale were held upon trust for Miss Dorothy Williams, Miss Irene Williams and Mrs Brenda Morris as tenants in common in equal shares. By a notice to quit dated November 22 1979, served on the defendants on or about the next day, the plaintiffs, Miss Dorothy Williams and Miss Irene Williams, required the defendants to deliver up possession of the demised flat on December 24 1979. At the date when this notice was given none of the three beneficiaries named in clause 3 of the will were resident in the flat. On February 6 1980, the Southern Area Rent Tribunal, in response to an application by the defendants and in exercise of its powers under Part VII of the Rent Act 1977 (section 104), gave a direction that the notice to quit should not take effect until May 6 1980 and determined that the rent payable in respect of the tenancy should be £12.81 a week. In its written decision, the tribunal gave Mr Mate liberty to reapply for further deferment if he had not by May 6 1980 found alternative accommodation. When May 6 1980 arrived, the defendants did not give up possession of the demised flat to the plaintiffs. They continued and still remain in occupation of it. It is common ground on the pleadings that a reasonable sum for the use and occupation of the demised flat is £12.81 a week and that this sum has been accepted by the plaintiffs on account of mesne profits. Against this background, on June 15 1981 the plaintiffs began the present proceedings, claiming possession of the demised flat and mesne profits at the rate of £12.81 per week until possession should be given. The defendants submitted to the learned judge that at and after the extended date of expiration of the notice to quit (May 6 1980), the tenancy of the flat was a ‘protected tenancy’ within the meaning of the Rent Act 1977 (‘the 1977 Act’) and that accordingly they were entitled to claim protection under that Act. The learned judge accepted this submission and dismissed the plaintiffs’ claim accordingly. It was common ground before her that this defence raised on behalf of the defendants must be a good one unless the plaintiffs can successfully rely on section 12(1) of the 1977 Act. This subsection provides: Subject to subsection (2) below, a tenancy of a dwelling-house granted on or after August 14 1974 shall not be a protected tenancy at any time if — (a)  the dwelling-house forms part only of a building and that building is not a purpose-built block of flats; and (b)  the tenancy was granted by a person who, at the time that he granted it, occupied as his residence another dwelling-house which also forms part of that building; and (c)  subject to paragraph 1 of Schedule 2 to this Act, at all times since the tenancy was granted the interest of the landlord under the tenancy has belonged to a person who, at the time he owned that interest, occupied as his residence another dwelling-house which also formed part of that building. In terms this subsection applies only to a tenancy granted on or after August 14 1974. The tenancy in the present case was created in August 1972. However, the transitional provisions contained in paragraph 6 of Schedule 24 to the 1977 Act cause this Act to apply in the present case as if the tenancy had been granted on August 14 1974 and as if the condition in section 12(1)(b) of the 1977 Act were fulfilled in relation to the grant of the tenancy. The condition in section 12(1)(a) of the 1977 Act is also fulfilled on the facts of the present case. The problem arises because of the condition in section 12(1)(c). In regard to the latter condition, it cannot be said that at all times93 since the tenancy was granted the interest of the landlord under the tenancy has belonged to a person who, at the time he owned that interest, occupied as his residence another dwelling-house which also formed part of the building. The reason is that between March 16 1979 (the date of Mrs Whitlock’s death) and November 22 1979 (the date of the notice to quit) the landlord’s interest was vested first in Mr Morris as executor and then in the plaintiffs and none of these persons occupied as their residence another dwelling-house which also formed part of the building. If, therefore, the plaintiffs are to satisfy the court that the condition in section 12(1)(c) of the 1977 Act is satisfied, they are forced to rely upon paragraph 1 of Schedule 2 to the 1977 Act. Paragraph 1 of Schedule 2, so far as material for present purposes, provides: 1. In determining whether the condition in section 12(1)(c) of this Act is at any time fulfilled with respect to a tenancy, there shall be disregarded . . . (c) any period of not more than 12 months beginning with the date on which the interest of the landlord under the tenancy becomes, and during which it remains, vested — (i) in the personal representatives of a deceased person acting in that capacity; or (ii) in trustees as such; or (iii) by virtue of section 9 of the Administration of Estates Act 1925, in the Probate Judge, within the meaning of that Act. Paragraphs 2 and 3 of Schedule 2 read as follows: 2. During any period when — (a)  the interest of the landlord under the tenancy referred to in section 12(1) is vested in trustees as such, and (b)  that interest is or, if it is held on trust for sale, the proceeds of its sale are held on trust for any person who occupies as his residence a dwelling-house which forms part of the building referred to in section 12(1)(a), the condition in section 12(1)(c) shall be deemed to be fulfilled and, accordingly, no part of that period shall be disregarded by virtue of paragraph 1 above. 3. Throughout any period which, by virtue of paragraph 1 above, falls to be disregarded for the purpose of determining whether the condition in section 12(1)(c) is fulfilled with respect to a tenancy, no order shall be made for possession of the dwelling-house subject to that tenancy, other than an order which might be made if that tenancy were or, as the case may be, had been a regulated tenancy. The effect of Schedule 2 was considered by the House of Lords in Landau v Sloane [1981] 2 WLR 349. In that case a landlord had granted a tenancy of a flat to the defendant. The tenancy was not a protected tenancy because of section 12 of the 1977 Act. The landlord subsequently died. During the year following her death, which fell to be ‘disregarded’ under paragraph 1 of Schedule 2, the plaintiffs who were the landlord’s personal representatives, served a notice to quit on the defendant. The defendant then applied to a rent tribunal for the extension of the period of the notice. The tribunal extended the period, but, even so, the notice expired during the one-year period and no new resident landlord moved into the premises during that period. The plaintiffs brought proceedings for possession of the flat, on the grounds that the contractual tenancy had been determined by the notice to quit and that the defendant was a trespasser, who was not entitled to the protection of the 1977 Act. The House of Lords by a majority held that this claim succeeded. It held that the effect of paragraph 3 of Schedule 2, which had been relied on by the tenant by way of defence, was limited to preventing the personal representatives from obtaining an order for possession during the period of disregard. It held that in all other respects their rights were the same as those of a resident landlord and that accordingly, since the defendant’s tenancy was a ‘restricted contract’ under section 20 of the 1977 Act and had come to an end during the period of disregard, the defendant was left with no relevant rights under that Act, except the right not to have an order for possession made against him during the period of disregard. During the course of his speech Lord Wilberforce, one of the majority, made the following observations in regard to the legislative policy behind the statutory provisions in question (at p 352): The case when a resident landlord dies during the currency of a tenancy such as that with which we are concerned, is dealt with in Schedule 2. Since the requirement (section 12(1)), that the landlord must remain resident until the termination of the contract, cannot be complied with if he is dead, the Schedule introduces for the benefit of his estate a period of ‘disregard’. Paragraph 1(c) fixes this, in the case of personal representatives, as a period of not more than 12 months from the date when the landlord’s interest vested in them. The purpose and effect of this is evidently to confer upon the personal representatives the same remedies as regards the tenancy as would have been exercisable by the resident landlord whose estate they represent, the period of non-residency by the personal representatives being disregarded. The policy behind these provisions is reasonably clear. First it is essential if the Act is to work, and if owners of houses are to be induced to let rooms, that the owner should be able to regain possession of the portion let, so that he can sell with vacant possession. His house is probably his major asset, and if he cannot sell it at its full value, he will not let. The Act clearly allows him to do this, subject only to the qualification that he must remain in residence until the tenancy comes to an end. Secondly, and similarly, his personal representatives must be able to realise the house — very likely, again, the most valuable asset in the estate. So, though in fact they may not be resident, they are, by the process of ‘disregard’ treated as resident, if their testator was resident. Consequently one could expect that they could serve a notice to quit (assuming that the contract allows this), regain possession and sell. Anything which prevents them from doing this would be unjust to the estate of the landlord and confer an uncovenanted benefit upon the tenant. In the present case, the plaintiffs contend, as they contended before the learned judge, that by virtue of paragraph 1 of Schedule 2, in determining whether the condition in section 12(1)(c) of the 1977 Act was fulfilled at the date of the notice to quit, there falls to be disregarded the whole of the period March 16 1979 to November 22 1979, on the grounds that during the period from March 16 1979 to October 19 1979 the interest of the landlord under the tenancy became and remained vested ‘in the personal representatives of a deceased person acting in that capacity’, within the meaning of subparagraph (c)(i) of paragraph 1 of Schedule 2 and, during the period from October 19 1979 to November 22 1979, following the assent, it became and remained vested ‘in trustees as such’, within the meaning of subparagraph (c)(ii). Though the notes of her judgment are fairly brief, it would appear that the learned judge rejected this argument on two grounds. First, she considered that, as she put it, the assent caused ‘a break in the chain’. She apparently did not doubt that the period during which the landlord’s interest was vested in Mr Morris, as Mrs Whitlock’s personal representative, fell to be disregarded for the relevant purposes, by virtue of subparagraph (c)(i). She considered, however, that it was not open to the plaintiffs to rely in addition on subparagraph (c)(ii) for the purpose of asserting that the period October 19 1979 to November 22 1979 also fell to be disregarded. She apparently took the view that, in any one instance, reliance can never be placed on more than one of the three subparagraphs (c)(i), (ii), (iii) for the purpose of ascertaining a period of disregard. I am myself unable to accept this view. I can see nothing in the wording of paragraph 1(c) of Schedule 2 which prevents a plaintiff in possession proceedings, where the facts fit, from taking credit for two, rather than one only, of the periods mentioned in that subparagraph, which are expressed as alternatives. As Mr Langan pointed out on behalf of the appellant plaintiffs, the difficulty of treating any relevant periods as being other than cumulative is demonstrated when one considers what happens when a landlord dies intestate. On his death, his interest in the demised property for the time being vests, by virtue of section 9 of the Administration of Estates Act 1925, in the probate judge within the meaning of that Act. Once letters of administration are granted, it then vests in the personal representatives of the deceased in that capacity. It would be an extraordinary result if the personal representatives when appointed were precluded from relying on subparagraph (c)(i) merely because subparagraph (c)(iii) also applied in relation to the earlier period, while the interest was vested in the probate judge. In my judgment, it is reasonably clear that a plaintiff in possession proceedings can at the same time take credit for both the period specified in subparagraph (c)(i) and that specified in subparagraph (c)(iii). Mr Harper on behalf of the respondent defendants, while not disputing that proposition, submitted that a plaintiff could nevertheless not take credit for both the period specified in subparagraph (c)(i) and that specified in subparagraph (c)(ii). I cannot accept this submission, which does not seem to me to be justified either by the wording or any supposed purpose of the 1977 Act. I therefore conclude that, on appropriate facts, a plaintiff is entitled to invoke both the period specified in subparagraph (c)(i) and that specified in subparagraph (c)(ii). The second ground upon which the learned judge rejected the plaintiffs’ argument based on paragraph 1(c) of Schedule 2 was that on any footing, following the execution of the assent on October 19 1979, the land was not vested in ‘trustees as such’, within the meaning of subparagraph (c)(ii). She took the view that the phrase in its context referred to a ‘settlement or arrangement of that sort’. She appears to have laid stress on the facts that after the execution of the assent there was, as she put it, ‘no relationship with the estate of Mrs Whitlock thereafter’ and Mr Morris had no further control over the property or the way it was dealt with. Mr Harper on behalf of the defendants appeared to be making much the same point when he submitted that the plaintiffs were not ‘trustees as such’, because, as he put it, they were not ‘trustees of the deceased’s interest’. I confess I do not find this point entirely easy to follow. If Mr Morris had executed an assent in relation to the demised flat in favour of himself as trustee to hold upon the trusts declared in clause 3 of the will, it seems to me clear that the property would thereafter have been vested in a ‘trustee as such’ within the ordinary meaning of words; he would have held the land as a trustee and in the capacity of a trustee, which I think is what the phrase ‘as such’ means. It would then have been open to him to appoint the plaintiffs as trustees in place of himself and, so far as I can see, the property would have remained vested ‘in trustees as such’, both immediately before and after such appointment. I cannot see that it makes any difference that he short-circuited this procedure by executing an assent in favour of them as trustees at once, without first assenting in favour of himself as trustee. Mr Harper referred to certain parallel transitional provisions contained in paragraph 6(3) of Schedule 24 to the 1977 Act, which use the same phrase ‘in trustees as such’ in a context which is plainly wide enough to include the trustees of an inter vivos settlement, because the subsequent words of the subparagraph use the phrase ‘the settlor immediately before the creation of the trust’. I do not, however, read the phrase ‘trustees as such’ in paragraph 6(3) of Schedule 24 as necessarily excluding the trustees of a trust arising under a will or intestacy and do not think that this subparagraph gives much assistance in the construction of paragraph 1 of Schedule 2. I prefer to attempt no comprehensive definition of the phrase ‘vested in trustees as such’ in the last-mentioned paragraph. I can well see that in certain hypothetical circumstances it might give rise to difficult problems of interpretation — for example, if Mr Morris, as personal representative, had sold the demised flat to the trustees of an inter vivos settlement which had no connection with Mrs Whitlock or, indeed, if the two plaintiffs were the sole beneficiaries under the trusts referred to in the assent. I do not think it necessary to express any opinion in relation to these hypothetical examples. For present purposes it will suffice to say that, in my judgment, in the context of paragraph 1 of Schedule 2, the phrase ‘trustees as such’ is, as a matter of language, manifestly apt to cover a case where the landlord’s interest under a tenancy is vested in two persons, such as the plaintiffs in the present case, who hold the net rents and profits until sale and the net proceeds of sale when sold on the trusts declared by a will in favour of three persons, albeit two of them including themselves. I cannot find anything in the wording of the Schedule to justify the confinement of the phrase to a case where land is vested in trustees holding on the terms of an inter vivos settlement or a family arrangement, or so as necessarily to exclude the trustees of a trust arising under a will or intestacy. Furthermore, if the purpose of the legislature falls to be considered in this context, the following points are significant. As Mr Harper conceded, if Mr Morris had not executed the assent, he would undoubtedly have been entitled to obtain possession of the demised flat for the benefit of the devisees under the will by serving a notice to quit in November 1979, and thereafter bringing proceedings for possession in his capacity as personal representative of Mrs Whitlock. Furthermore, as he also conceded, if Mr Morris, when faced with ill-health, had executed a power of attorney in favour of the plaintiffs, while retaining his capacity as personal representative, and had left it to them to serve the notice to quit and bring proceedings for possession as attorneys, the defendants would have had no defence to the present claim. I cannot see why, as a matter of presumed legislative policy, any more than as a matter of statutory interpretation of the wording of the 1977 Act, the mere execution of an assent in favour of two individuals, to hold the property on the trusts declared by clause 3 of the will, should prejudice the beneficiaries, by causing the interruption of the 12-month period of disregard. Accordingly, in so far as the plaintiffs’ case is based on paragraph 1 of Schedule 2 to the 1977 Act, I conclude that it is well founded and that section 12(1) of that Act prevents the tenancy from being a protected tenancy. The defendants, however, without objection from the plaintiffs’ counsel, have in addition relied on another, more formidable, point which was not ventilated before the learned judge. This is based on paragraph 7 of Schedule 2 to the 1977 Act, which reads as follows: If, in a case where a tenancy becomes a protected tenancy as mentioned in subparagraph (1)(a) above — (a)  a notice to quit had been served in respect of the dwelling concerned before the date on which the tenancy became a protected tenancy, and (b)  the period at the end of which that notice to quit takes effect had, before that date, been extended under Part VII of this Act, and (c)  that period has not expired before that date, the notice to quit shall take effect on the day following that date (whenever it would otherwise take effect) and, accordingly, on that day the protected tenancy shall become a statutory tenancy. The defendants now claim to be entitled to a statutory tenancy by virtue of this paragraph. This reference to ‘subparagraph (1)(a) above’ must in its context be a reference to paragraph 6(1)(a) of Schedule 2, which refers to the case where a tenancy which, by virtue only of section 12, was precluded from being a protected tenancy ceases to be so precluded and accordingly becomes a protected tenancy. In the present case the tenancy ceased to be so precluded and became a protected tenancy in this manner on March 16 1980, that is to say the anniversary of Mrs Whitlock’s death. Applying paragraph 7 of Schedule 2 to the facts of the present case, condition (a) appears to be fulfilled, because a notice to quit had been served in respect of the demised flat before March 16 1980. Condition (b) appears to be fulfilled, because the period at the end of which that notice to quit took effect had, before March 16 1980, been extended under Part VII of the 1977 Act (to May 6 1980). Condition (c) appears to be fulfilled, because the last-mentioned period had not expired before March 16 1980. Accordingly, it would appear, paragraph 7 caused the notice to quit to take effect on the day following March 16 1980, that is to say March 17 1980, and on the latter date the protected tenancy for the time being became a statutory tenancy. Mr Harper submitted that the effect of the decision of the rent tribunal, read in conjunction with paragraph 7 of Schedule 2 to the 1977 Act, was to confer on the defendants the status of statutory tenants as from March 17 1980. Mr Langan on behalf of the plaintiffs found himself constrained to accept that this was indeed so and that this anomalous situation continued at least until November 28 1980, when section 65 of the Housing Act 1980 (‘the 1980 Act’) came into effect. However, he submitted that the situation was entirely altered by that section. Section 65(1) of the 1980 Act provides that, in section 12(1) of the 1977 Act, for paragraphs (a) to (c) there are substituted the paragraphs set out in section 65(1). The remaining subsections of section 65 read as follows: (2)  Schedule 2 to the 1977 Act (provisions for determining application of section 12) is amended as follows. (3)  In paragraph 1 — (a)  in subparagraph (a) for the words ’14 days’ there are substituted the words ’28 days’ and after the word ‘building’ there are inserted the words ‘or, as the case may be, flat’; (b)  in subparagraph (b) for the words ‘such dwelling-house as is referred to in that paragraph’ there are substituted the words ‘dwelling-house in the building or, as the case may be, flat concerned’; and (c)  in subparagraph (c) for the words ’12 months’ there are substituted the words ‘2 years’ and paragraph (i) is hereby repealed. 94 (4)  In paragraph 2(b) after the word ‘building’ there are inserted the words ‘or, as the case may be, flat’. (5)  After paragraph 2 there is inserted the following paragraph — ‘2A — (1) The tenancy referred to in section 12(1) falls within this paragraph if the interest of the landlord under the tenancy becomes vested in the personal representatives of a deceased person acting in that capacity. (2)  If the tenancy falls within this paragraph, the condition in section 12(1)(c) shall be deemed to be fulfilled for any period, beginning with the date on which the interest becomes vested in the personal representatives and not exceeding two years, during which the interest of the landlord remains so vested.’ (6)  Subject to subsection (7) below, this section, except subsection (1), applies to tenancies granted before as well as those granted after the commencement of this section. (7)  In any case where the interest of the landlord under a tenancy vested in the personal representatives (acting in that capacity) of a person who died before the commencement of this section, Schedule 2 to the 1977 Act applies as if paragraph 2A had not been inserted and paragraph 1(c)(i) had not been repealed. In the present case the relevant tenancy was granted before the commencement of section 65 of the 1980 Act. Furthermore, the interest of the landlord under the tenancy vested in the personal representatives of Mrs Whitlock before the commencement of that section. Nevertheless, section 65(6) makes it clear that, subject to subsection (7), the section, except subsection (1), is to apply to the tenancy. Section 65 is thus manifestly intended to have some retrospective effect. The question is how far this effect extends in the present case. Mr Langan on behalf of the plaintiffs submitted that, since subsection (7) states in terms that, in any case of the nature specified therein, Schedule 2 to the 1977 Act applies as if paragraph 2A had not been inserted and paragraph 1(c)(i) had not been repealed, the necessary inference is that Schedule 2 is to apply even to pre-1980 tenancies with the other amendments specified in section 65 — in particular with the substitution of two years for 12 months in subparagraph (c) of paragraph 1 of Schedule 2. Accordingly, he submitted, as from November 28 1980, section 65 of the 1980 Act would have prevented the defendants from claiming that their tenancy was a ‘protected tenancy’ at the date when the notice to quit expired on May 6 1980, because the extended two-year period of disregard following Mrs Whitlock’s death would not yet have expired at that date and the plaintiffs would have been entitled to take full advantage of section 12(1) of the 1977 Act. So far as it goes, this argument seems to me well founded. In my judgment, however, it does not follow that the plaintiffs’ claim to possession can succeed on the facts of the present case, for these short reasons. The effect of section 12(1) of the 1977 Act, where it applies, is merely to prevent a tenancy from being a ‘protected tenancy’. It is not, however, expressed to have any application at all to a ‘statutory tenancy’. A statutory tenancy by its very nature, as defined by section 2 of the 1977 Act, can arise only on the termination of a protected tenancy. Its quality is thus different from that of a protected tenancy. In the present case a protected tenancy had terminated and a statutory tenancy had, by virtue of paragraph 7 of Schedule 2 to that Act, already arisen on March 17 1980, long before section 65 of the 1980 Act came into operation. Significantly section 65 does not repeal or amend in any way paragraph 7 of Schedule 2 to the 1977 Act. I can find nothing in the section which, on November 28 1980, either expressly or by necessary implication deprived the defendants of their status as statutory tenants. In my judgment, this legislation, like any other retrospective legislation, should not be construed as divesting vested statutory rights, except in so far as its wording clearly so requires. This conclusion does not mean that section 65 can have no retrospective effect. For example, I can see no reason why it may not enable the personal representatives of a landlord who died before the section came into operation to claim the benefit of the extended two-year period of disregard, for the purpose of obtaining an order for possession, in a case where the tenancy for the time being became a protected tenancy on the expiration of the executor’s year before November 28 1980, but, on the facts, has not yet become a statutory tenancy. In such circumstances the tenant’s defence, if any, to a claim for possession would presumably have to be based on an alleged protected tenancy; and section 12(1) of the 1977 Act, read in conjunction with paragraph 1 of Schedule 2 to that Act as amended by section 65 of the 1980 Act would, in my opinion, prevent him from successfully asserting any protected tenancy. On the facts of the present case, however, it does not suffice for the appellants merely to negative the existence of a protected tenancy. If this judgment is correct, the present case reveals certain anomalies in the legislation, since the defendants have gained their status as statutory tenants solely through the action of the rent tribunal in extending the operation of the notice to quit beyond the executor’s year. However, in Landau v Sloane Lord Wilberforce expressly referred to the possibility of such an occurrence. He said (at p 354): It is pointed out, justly, that if the contractual tenancy extends beyond the executor’s year, the tenant will become protected, and so a statutory tenant. This is no doubt so, under the terms of the Act. But I do not see that this is an argument to giving the same benefit to a tenant whose tenancy determines in the executor’s year. If anything, it creates an anomaly which requires correction: in fact it has partly been so corrected by the Housing Act 1980, section 65(5). It is also said that, in the latter case, a rent tribunal may be applied to and may extend the tenancy beyond the 12 months — in which case too the tenant would become statutory. Templeman LJ described this as a terrible power, with deterrent effect against the appellant’s argument. With respect I do not find it so deterrent. The power of rent tribunals to alter contractual arrangements is inherent in the legislation; in many cases they may alter what would otherwise be the legal situation. But, as exemplified by the present case (where a second extension was refused) it must not be assumed that the rent tribunal will act so as seriously to affect legal rights — deliberately to do so would be an abuse of power; and if, as is likely, most cases before them are either of short periodic tenancies, or of fixed tenancies (in which case they cannot extend the period), it is not to be assumed that, with paragraph 3 of Schedule 1 and the Protection from Evict on Act 1977 available for the tenant, they will readily take action which would radically affect the landlords’ rights. In the present case, the rent tribunal have done just what Lord Wilberforce said it should not be assumed it would do — namely, it has acted in such manner as seriously to affect the landlord’s legal rights by extending the tenancy beyond the 12-month period. It appears that it did not do so deliberately, because, in the course of his written decision, the chairman stated that if Mr Mate had not found alternative accommodation by May 6 1980 he could apply again for further deferment. The tribunal thus appears to have had no intention of conferring the status of statutory tenant on him or any realisation that it might be doing so. However, it seems to me an inescapable conclusion that this was what the tribunal in fact did. Furthermore it appears to have been the opinion of Lord Wilberforce that, if, for whatever reason, the tribunal did in fact take this course, the tenant would come to enjoy the full rights of a statutory tenant. Lord Wilberforce referred to the Housing Act 1980, but does not appear to have considered that it would affect the resulting legal position in a case where a rent tribunal extended a tenancy beyond the executor’s year. If this is the correct interpretation of his opinion, I respectfully agree with it. In my judgment, by virtue of paragraph 7 of Schedule 2 to the 1977 Act, the defendants have enjoyed the status of statutory tenants since March 17 1980 and nothing in section 65 of the 1980 Act has deprived them of this status. On these grounds, I would dismiss this appeal. CUMMING-BRUCE LJ said that he had been asked by DUNN LJ, who was not present, to express his agreement with the judgment of Slade LJ. He (Cumming-Bruce LJ) agreed that the appeal should be dismissed and said: The result is anomalous. It is a consequence of the strange situation to which lord Wilberforce referred in the passage in his speech in Landau v Sloane (at p 354 of the report) which Slade LJ has already quoted. Lord Wilberforce expressed the view that it would be an abuse of power for a rent tribunal deliberately to extend the operation of a notice to quit so as seriously to affect legal rights, but none the less he evidently held that the tribunal had the power to do so, though they would not readily exercise it. In the instant case it can be inferred from the terms of the written decision of the tribunal that the tribunal did not deliberately create a95 statutory tenancy and, as Slade LJ has explained, did not realise it was doing so. So the tribunal’s decision may have been based upon, or at least influenced by, disregard of a relevant consideration. I do not express any opinion upon the prospects of success if the plaintiffs were to decide to embark upon further litigation in order to seek judicial review of the tribunal’s decision, now that its unexpected and unintended characteristics have been uncovered. That would be a matter for the plaintiffs. It seems a little odd that a tribunal can achieve by mistake what it cannot properly seek to achieve with conscious deliberation. Apart from this, though it will not help the plaintiffs, there seems to be room for further consideration by Parliament of the anomalous result of the obscure drafting of paragraph 7 of Schedule 2 to the 1977 Act. The appeal was dismissed with costs in the Court of Appeal.