ON APPEAL FROM BRIGHTON COUNTY COURT
HIS HONOUR JUDGE SIMPKISS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
DAME JANET SMITH DBE
| SAXON WEALD HOMES LIMITED
|- and -
|DAYNE RICHARD CHADWICK
Mr Marc Living (instructed by EJ Moyle) for the Respondent
Hearing date : 7th October 2011
Crown Copyright ©
Lord Justice Davis :
The Factual Background
"This means that for the first 12 months it will be a periodic assured shorthold tenancy and you will occupy the property as an assured shorthold tenant."
It was further stated:
"If at the end of 12 months we have not taken steps to terminate the tenancy it will automatically convert into an assured periodic tenancy and will continue each week until it is ended…"
The net weekly rent was £75.32 with an additional weekly service charge of £1.95.
"2.2 Becoming a full assured tenant
2.2.1 This tenancy is an assured shorthold tenancy until the provisions set out in sub-clause 2.2.2 come into effect.
2.2.2 This tenancy will become an assured tenancy 12 months after the commencement of this tenancy unless, before that date:-
i) we have begun possession proceedings against you; or
ii) we have served you with a notice requiring possession
Where either i) or ii) apply, the tenancy will continue to be an assured shorthold tenancy until:
a) the day after any proceedings are determined (if no possession order is made) or
b) the tenancy is ended by a Court Order for possession.
iii) if the tenancy converts to a fully assured tenancy, we will send you a letter confirming the change in status of your tenancy,
2.2.3 If we give you a Notice requiring Possession and we decide to go to Court, you have the right to appeal to us in accordance with our Procedure."
As is commonplace, the Tenancy Agreement thereafter imposed various obligations on the landlord and tenant respectively: including, by paragraph 4.16, extensive obligations on the tenant requiring him not to engage in or cause anti-social behaviour.
Our Client : Saxon Weald Homes Limited
We are instructed by your above landlord and enclose a Notice Requiring Possession and a Notice Seeking Possession, the contents of both we trust are self explanatory.
We would remind you of your right to seek independent legal advice. Given the service of these Notices upon you, you will remain an assured shorthold tenant under your probationary tenancy.
"Dear Mr Chadwick
I am pleased to inform you that following the successful completion of your one year starter tenancy, you are now an assured tenant.
As an assured tenant, you now have the following rights, in addition to those you already enjoy:
- The right to mutually exchange.
- The right to apply for a transfer to another Saxon Weald property.
- The right to assign your tenancy in certain circumstances (contact your Area Manager for further information).
- The right to make improvements to the property.
- The right to acquire (purchase) the property, if eligible.
Should you have any queries regarding the above, please do not hesitate to contact me.
It is by virtue of this letter that the tenant says that his tenancy had ceased to be an assured shorthold tenancy and had become an assured tenancy.
The Statutory Background
"An assured tenancy which:-
a) is entered into on or after the day on which section 96 of the Housing Act 1996 comes into force (otherwise than pursuant to a contract made before that day), or
b) comes into being by virtue of section 5 above on the coming to an end of an assured tenancy within paragraph (a) above,
is an assured shorthold tenancy unless it falls within any paragraph in Schedule 2A to this Act."
Section 21 is, in the relevant respects, in these terms:-
"(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied—
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling-house.
(4) Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling-house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied—
(a) that the landlord or, in the case of joint landlords, at least one of them has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling-house is required by virtue of this section; and
(b) that the date specified in the notice under paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above."
Schedule 2A is in these terms:-
1."(1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.E+W
(2) The notice referred to in sub-paragraph (1) above is one which—
(a) is served before the assured tenancy is entered into,
(b) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is not to be an assured shorthold tenancy.
2. (1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.E+W
(2) The notice referred to in sub-paragraph (1) above is one which—
(a) is served after the assured tenancy has been entered into,
(b) is served by the landlord under the assured tenancy on the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is no longer an assured shorthold tenancy.
3. An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy."
It is not necessary to set out the precise terms of section 8. That enables the landlord to seek possession, among other things, in the case of breach of the Tenancy Agreement. It is, of course, to be noted that if a tenancy is an assured shorthold tenancy which has come to an end where the landlord has given due notice under section 21 (4) (a) then the court is required to make a possession order. There is no such requirement in the case of possession sought for breaches of the tenancy agreement: in such a case the court retains a discretion if it finds the breaches proved as to whether it is reasonable to order possession.
The Proceedings Below
"Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?"
At p.779G Lord Hoffmann said this:
"The fact that the words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say they used the wrong words."
Mr Glen was wholly unable to say, however, what the letter of 11th August 2009 was on his case intended to mean, on this approach. In effect, he came back to saying there had been an error – which, I repeat, is not in itself advanced as a ground of appeal. In truth this letter more obviously falls under the category of document alluded to by Lord Clyde at p.781D of Mannai : it is a document unambiguously complying with provisions empowering the sending of the notice. It is in fact a point of comment that in the course of her oral evidence the landlord's Housing Manager stated, when asked about the purpose of such a letter, that it was sent out as a standard letter to tell the tenant that the tenancy is converted from a shorthold to a full assured tenancy. Read objectively this letter is plainly a notification to that effect.
Dame Janet Smith DBE:
Lord Justice Mummery: