England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
(HIS HONOUR JUDGE OVEREND)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd January 2001

1. THE VICE-CHANCELLOR: This is the appeal of the second defendant, Mrs Evely, brought with the permission of Peter Gibson LJ from the order of His Honour Judge Overend, sitting in the Plymouth County Court made on 29th June 2000. By that order he allowed the appeal of the claimant, Mrs Goodman, from the decision made on 10th February 2000 by District Judge Tromans not to grant an order for possession in her favour. In the event Judge Overend made an order for possession in favour of Mrs Goodman in respect of Springfield Farm Bungalow, New Road, Lutton, Ivybridge, Devon. The only question which now arises on this appeal is whether the tenancy of that property granted by Mrs Goodman to Mr and Mrs Evely was, or was not, an assured shorthold tenancy for the purposes of the Housing Act 1988.
2. The agreement in question was made on 31st October 1995. It was a letting by Mrs Goodman as the lessor of the bungalow to which I have referred to Mr and Mrs Evely as lessee. The agreement was described as the letting of an unfurnished dwellinghouse on an assured shorthold tenancy at a rent of £250 pounds per calendar month. That was on the back sheet. At the top of the agreement itself it said "Agreement for letting unfurnished dwellinghouse on an assured shorthold tenancy under Part 1 of the Housing Act 1988". The parties as landlord and tenant are set out; the property is described as:

"A term certain of one year from 1st November 1995 and (if the Landlord shall not previously have served notice on the Tenant of intention to take proceedings for recovery of possession of the property at the expiry of such term) thereafter from month to month"

3. The reference under "rent" was"£250 per calendar month, the first payment to be made on 1st November 1995".
4. Clauses 1 and 2 are in the following terms:

"1. The landlord lets and the Tenant takes the property for the Term at the Rent payable as above.

2. This Agreement is intended to create an assured shorthold tenancy as defined in section 20 of the Housing Act 1988 and the provisions for the recovery of possession by the Landlord in section 21 thereof apply accordingly."

5. None of the remaining provisions of the tenancy appear to me to be material to the issue we have to determine.
6. On 1st November 1996, the initial year provided for under the description of the term expired, and whether or not it was a separate tenancy, the relationship between Mrs Goodman, on the one hand, and Mr and Mrs Evely on the other continued as a tenancy from month to month. A notice requiring possession was served by Mrs Goodman on the Evelys on 28th June 1999. On 24th September 1999, Mrs Goodman applied for an accelerated order for possession under section 21 the Housing Act 1998, the application being made to the Plymouth County Court.
7. Mrs Evely, her alone because by then Mr Evely had left, served a defence on 8th October 1999 contending quite simply that the tenancy was not an assured shorthold but an assured tenancy because it was not a tenancy for a fixed term providing as it did that the tenancy should continue from month to month after the initial year had come to an end
8. As I indicated, the matter came before District Judge Tromans on 10th February 2000. He gave a reserved judgment in which he concluded that the tenancy was an assured but not an assured shorthold tenancy, and he also dealt secondly with a claim in relation to a promissory estoppel which is no longer pursued.
9. Mrs Goodman applied for leave to appeal which she obtained and the appeal came before Judge Overend on 24th June. He allowed the appeal and made the possession order sought. He considered that the tenancy was for a fixed term of one year with a separate subsequent periodic tenancy arising when the tenant choose to stay on at the expiration of the fixed term, or, alternatively, that the tenancy was not in any event a periodic tenancy for the fixed term of one year was a different period from the continuation of a tenancy from month to month.
10. Mrs Evely sought permission to appeal, and the matter came before Peter Gibson LJ. He gave permission to appeal and added:

"I do not wish to give the appellant undue encouragement as to the outcome of this appeal, but the issue raised is one involving an important point of principle on the Housing Act 1988 on which no direct authority has been found by counsel and the Judge himself would have granted permission to obtain the guidance of this court."

11. The relevant provisions of the Housing Act 1988 are as follows. Section 20(1) provides:

"Subject to subsection (3) below, an assured shorthold tenancy is an assured tenancy--

(a) which is a fixed term tenancy granted for a term certain of not less than six months;"

12. I omit (b) and (c) and subsections 2 and 3. Subsection (4) provides:

"Subject to subsection (5) below, if, on the coming to an end of an assured shorthold tenancy (including a tenancy which was an assured shorthold but ceased to be assured before it came to an end), a new tenancy of the same or substantially the same premises comes into being under which the landlord and the tenant are the same as at the coming to an end of the earlier tenancy, then, if and so long as the new tenancy is an assured tenancy, then, if and so long as the new tenancy is an assured tenancy, it shall be an assured shorthold tenancy, whether or not it fulfils the conditions in paragraphs (a) to (c) subsection (1) above.

(5) Subsection (4) above does not apply if, before the new tenancy is entered into (or, in the case of a statutory periodic tenancy, takes effect in possession), the landlord serves notice on the tenant that the new tenancy is not to be a shorthold tenancy."

13. Section 45 is described as interpretation of Part 1, and provides, so far as relevant:

"(1) In this Part of this Act, except where the context otherwise requires,--...

'Fixed term tenancy' means any tenancy other than a periodic tenancy;"

14. The case for the tenant advanced by Mr Parker is to the effect that the agreement constituted a single tenancy in effect for a term of one year and one month determinable thereafter on a month's notice. His submission is that the tenancy is in part a periodic tenancy and so not a fixed term tenancy within section 45(1). In that connection he referred us to a number of authorities. The first was Addis v Burrows [1948] 1 KB 144 in which, at pages 449 and 450, Evershed LJ, as he then was, suggested that a tenancy for 18 months followed by a provision for continuation on a year to year basis constituted two tenancies. He points out, rightly, that the case was concerned with what sort of notice to quit should be given and cannot be regarded as determinative of the point of whether a tenancy in a case such as this is a single one or a double one. He also referred us to In Re Searle [1912] 1 Ch 610; British Iron and Steel Corporation v Malpern [1946] KB 171; Associated London Properties Ltd v Sheridan [1948] 1 All ER 20; and a paragraph in Woodfalls' Law of Landlord and Tenant, paragraph 6.034 to the effect that a tenancy for one year and thereafter from year to year is a tenancy in effect for two years because it cannot be determined until two years have expired.
15. For my part I do not think that the resolution of this appeal depends on whether one must regard the definition of the term as creating one tenancy or two. One can see what it is that it provides for, and it is then necessary, as it seems to me, to apply the Act in accordance with the terms of the tenancy. I am prepared to assume in Mr Parker's favour that the tenancy so provided for is a single tenancy and not two separate tenancies. He accepts, rightly, if it were two separate tenancies then the second one would come within section 20(4) and therefore would be an assured shorthold tenancy in any event.
16. The point is a short one and does not admit of any particular elaboration. It seems to me that it is clear that this tenancy is not a periodic tenancy, pure and simple, because the automatic continuance at the end of the year is not for the same period, that is to say, continuation from year to year. It follows that it does not come within the exclusion to section 45(1). It follows that not being a periodic tenancy pure and simple, within the terms of the definition it is a fixed tenancy. That this is the intention of the legislature appears to me to be confirmed by the fact that section 20(1)(a) would be tautologous if the tenancy must be confined to a single fixed term for in that event it would have been sufficient to require "a fixed term tenancy granted for not less than six months" thereby omitting from the definition the words "for a term certain of".
17. Moreover it appears to me that the provisions of section 20(4) indicate there was no legislative reason to provide otherwise. If the tenancy had been for "a term certain of one year" but the landlord omitted to determine it then with the effect from the end of the year it continued as a monthly tenancy. In that event section 20(4) provides expressly that the continuation shall itself be an assured shorthold tenancy. I can see no reason to strive for an opposite conclusion just because the tenancy spelled out the consequences of what would have happened in the event of the consequences not being spelled out and proceedings for possession not being taken by the landlord.
18. Further it appears that the history of this legislation confirms that there was no reason for limiting the operation of the assured shorthold tenancy regime in the manner for which Mr Parker would contend. We were referred to the case of Gent v De la Mere [1987] 20 HLR 199. That case arose under of the Housing Act 1980 which was in different terms. The tenancy was for the term of one year from 7th August 1983 subject to the provision that the landlord shall give to the tenant three months' notice in writing prior to the expiration date in the event of their not wishing to renew this agreement for a further term. But the landlord not having given such notice that he wished to renew the agreement, the tenant remained in occupation and remained in occupation as, of course, the tenant under periodic tenancy. The relevant legislation in section 52(5) provided that:

"If a protected tenancy is granted after the commencement of this section --...

(b) for such a term certain and thereafter from year to year or some other period; and satisfies the conditions stated in that subsection, the tenancy is a protected shorthold tenancy until the end of the term certain."

19. In the event the Court of Appeal did not have to determine whether the tenancy fitted in that provision because it concluded that Case 19 applied and therefore entitled the landlord to possession as a matter of right. That Case provided that:

"Where the dwelling-house was let under a protected shorthold tenancy... and-

(a) there either has been no grant of a further tenancy of the dwelling-house since the end of the protected shorthold tenancy or, if there was such a grant, it was to a person who immediately before the grant was in possession of the dwelling-house as a protected tenant and the proceedings for possession were commenced after appropriate notice by the landlord to the tenant and not later than three months after the expiry of the notice."

20. The result of that not dissimilar case is that under the old regime the landlord was entitled to possession. I cannot see any reason why, and counsel was not able to suggest one, what gave the landlord a right to possession in that case should somehow have been altered in this case so as to provide that this tenancy was not an assured shorthold tenancy.
21. It is not necessary in the views that I have taken of the proper construction of section 45 and section 20(1)(a) to form any concluded view as to the precise scope of section 20(4) it may well be that further argument will be directed in another case as to what is meant by the phrase "comes into being" in relation to what is described in that subsection as a new tenancy. Is it, for example, necessarily a new tenancy in the sense of a new agreement or is it sufficient that it is an old tenancy in the sense of having been agreed in the past but now regulates the operation of the right to possession in relation to the property on the expiration of the fixed term. I reach no conclusion on that. I decided this appeal on the assumption that Mr Parker was right that this was a single tenancy originally granted in 1995.
22. For these reasons I dismiss this appeal.
23. LORD JUSTICE MANCE: I agree.
(Appeal dismissed; payment of costs against this appeal and the court below against the Legal Aid Board with ten weeks for that Board to appear to set aside that order)