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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ravenseft Properties Ltd v Hall [2001] EWCA Civ 2034 (19 December 2001) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2001/2034.html Cite as: [2002] 1 EGLR 9, [2001] EWCA Civ 2034, [2001] NPC 188, [2002] 3 EGCS 127, [2002] 3 EGCS 126, [2002] 3 EGCS 125, [2002] 1 P & CR DG22, [2002] HLR 33, [2002] 11 EG 156, [2002] L & TR 25 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR RECORDER HETHERINGTON
BRISTOL COUNTY COURT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE TUCKEY
____________________
RAVENSEFT PROPERTIES LTD - and - BRIGID AGATHA HALL |
Appellant Respondent |
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PETER WHITE - and - DAVID CHUBB |
Appellant Respondent |
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FAWZI KASSEER - and - CARMELA FREEMAN |
Appellant Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Kim Lewison QC & Joanne Harris (instructed by Messrs Bindman & Partners for the Appellant)
John Male QC (instructed by Messrs Nabarro Nathanson & Co for the Respondent)
For White
Mr G Jones QC (instructed by Bradford & Co for the Appellant)
Mr P Morgan QC & Mr S Cottle (instructed by Bobbetts Mackan for the Respondent)
For Kasseer
Mr P Morgan QC & Mr K Farrelly (instructed by HCC Hann & Co for the Appellant)
Mr T M Farncourt (instructed by Triggs Wilkinson Mann for the Respondent)
____________________
Crown Copyright ©
Lord Justice Mummery :
Introduction
The Statutory Provisions
" (1) Subject to subsection (3) below, an assured tenancy…is an assured shorthold tenancy if-
(a) it is a fixed term tenancy granted for a term certain of not less than six months,
(b) there is no power for the landlord to determine the tenancy at any time earlier than six months from the beginning of the tenancy, and
(c) a notice in respect of it is served as mentioned in subsection (2) below.
(2) The notice referred to in subsection (1) (c) above is one which –
(a) is in such form as may be prescribed;
(b) is served before the assured tenancy is entered into;
(c) 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
(d) states that the assured tenancy to which it relates is to be a shorthold tenancy."
"prescribed by regulations made by the Secretary of State by statutory instrument."
"In these Regulations any reference to a section is to a section of the Housing Act 1988 and any reference to a numbered form is a reference to the form bearing that number in the Schedule to these Regulations, or to a form substantially to the same effect."
(i) The notice must be given before the person proposing to take a tenancy agrees to the tenancy, it being expressly stated that the notice does not commit the tenant to take the tenancy.
(ii) Although no particular length of time between the giving of the notice and entering into the tenancy is specified, it is contemplated that the recipient of the notice will have an opportunity to take advice, including legal advice.
(iii) The notice contains only selective information about the proposed tenancy: the name of the proposed tenant, the name and address of the landlord, the address of the premises to be let and the start and end dates of the tenancy, which must be for a term certain of at least six months. Other important information about the terms of the proposed tenancy does not have to be stated in the notice. For example, the amount of the rent is not required to be stated. All that is said about the rent is that it is "the rent we have agreed", coupled with an explanation of the right to apply to the rent assessment committee for a determination of the rent for the tenancy. So, the notice is not intended either to serve as a record of the tenancy agreement or to be a substitute for such an tenancy agreement. It is contemplated by the notice that there will be a subsequent document.
(iv) The purpose of giving the notice is clearly stated in paragraph 2 and is in accordance with section 20 (2) (d) of the 1988 Act:
"This notice is to tell you that your tenancy is to be an assured shorthold tenancy…"
Shorthold is a special kind of tenancy, as the paragraph goes on to explain: the tenant has security for the first six months of the fixed period agreed at the start of the tenancy, but, depending on the terms of the tenancy, the landlord may have the right to repossession if he wants at the end of that six months period.
(v) The Regulations expressly contemplate that deviations from the prescribed form do not necessarily invalidate a notice. Errors and omissions are expressly catered for by the provision in Regulation 2 that a reference to a form is a reference not only to the prescribed form but also includes a form "substantially to the same effect."
The Authorities
(i) Purposive Approach
In Manel v. Memon Nourse LJ posed these questions at p.42:
"What, then, is the substance of a notice under section 20? Its essential purpose is to tell the proposed tenant that the tenancy is to be an assured shorthold tenancy, with the consequences specified in paras 2 and 3 of the Form 7, in particular that "the landlord may have the right to repossession if he wants." Although we are now familiar with the notion that an assured shorthold tenancy gives the tenant a very limited security of tenure, that would not have been the case in 1988."
Nourse LJ mentioned the importance of the presence on the form of the reference to advice, including legal advice, and the statement that the giving of the notice did not commit the tenant to take the tenancy.
(ii) The Reasonable Recipient
In a significant ruling in York v. Casey Peter Gibson LJ, with whom Bennett J agreed, held that the objective test which the House of Lords said in Mannai Investment Co. Ltd. V. Eagle Star Life Assurance Co. Ltd [1997] AC 749 applied to the validity of a contractual tenancy notice also applied to the validity of a section 20 notice. On that approach a notice containing an error, such as a wrong date, may nevertheless be a valid notice if, "taking into account the relevant contextual scene", the notice is quite clear to a reasonable person reading it, so that he would not be misled by it or left in any reasonable doubt as to its effect. As Lord Clyde said in Mannai, the standard of reference is that of the reasonable person "exercising his common sense in the context and in the circumstances of the particular case."
The Ravenseft Appeal
"The Tenancy hereby created is intended to be an assured short hold tenancy as defined in Section 20 (1) of the Housing Act 1988 and the Lessee hereby acknowledges and confirms that a notice complying with the requirements of Section 20 (2) of the Housing Act 1988 was served upon her by the Lessor before this Agreement was entered into."
"We have now received revised instructions from our clients and enclose the engrossed assured shorthold tenancy for signature by your client and return to us. We also enclose notice of an assured shorthold tenancy and we would be grateful if you would forward this to your client."
"It is well settled that the habendum in a lease only marks the duration of the tenant's interest, and that the operation of the lease as a grant takes effect only from time of its delivery…. The expression "the duration of the term" connotes the period in which the term is to continue, and it cannot start until it is created. Until then there is no tenancy and no interest in the tenant."
"In my judgment, far from there being an error in the notice, the notice is, in the rather particular circumstances of this case, actually right."
"In a sense the 24th June to 23rd June dates, and I think it is in an important sense, are actually correct dates because they identify to perfection, indeed, what the document actually says. If you lie the two documents [the notice and the tenancy agreement] alongside one another – for instance, you do it at the moment of execution and before the solicitor inserts that date in manuscript (as he always does), then you can see that the term to be granted, albeit it is a backdated term, and the term referred to in the notice are one of the same and it has to be this tenancy we are referring to and nothing else."
"Accordingly,what the court must do is to see whether the error in the notice was obvious or evident and second, whether, notwithstanding that error, the notice read in its context is sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice."
The White Appeal.
"….the claimant does not get to the contextual saving unless he first satisfies me that the error was obvious or evident….This error in my judgment is quite different. There might lurk in the mind of the recipient some genuine perplexity as to why a period longer than six months had been selected for the notice. Of course it is right that he might well have assumed, had he adverted to it and thought about it, that it was simply a counting mistake; and of course the defendant was not in fact misled in this case: but the first of those matters is not the test, and the second is irrelevant.
Rightly or wrongly, the law, through Act of Parliament, then provided that strict formalities had to be observed when drafting these notices. In my judgment, and in the light of the authorities to which I have referred, where a perplexity existed in the terms of the notice, and any concurrent explanation by the landlord went to matters relating to the tenancy as a whole and not specifically to the notice as such, the defect in the notice is not cured, and it was and is an invalid notice."
The Kasseer Appeal.
"not diluted or obscured by a drafting error in a part of the notice that for all practical purposes was irrelevant to the Defendant and would have been taken by him to be irrelevant."
Lord Justice Tuckey:
Lord Phillips MR :
The White Appeal
The Kasseer Appeal
Order for Ravenseft:
Order for White and Kasser: