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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Truro Diocesan Board of Finance Ltd v Foley  EWCA Civ 1162 (22 October 2008)
Cite as:  EWCA Civ 1162,  1 WLR 2218,  HLR 21,  NPC 112,  1 P & CR 13,  1 All ER 814,  L & TR 18
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRURO COUNTY COURT
His Honour Judge Neligan
Claim No. 6BJ01881
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
SIR JOHN CHADWICK
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Mr. Andrew Arden Q.C. and Mr. Iain Colville (instructed by Michelmores LLP) for the respondent
Hearing dates : 9th July 2008
Crown Copyright ©
Lord Justice Moore-Bick :
"1A The Claimant's claim for possession is stayed.
1B There be a declaration that the First Defendant was a tenant of the premises under a protected shorthold tenancy within the meaning of section 52 of the Housing Act 1980 and as at the date hereof there has been no grant of a further tenancy."
"1) The First Defendant's existing tenancy of the premises at the Church School House . . . ("the property") shall be determined by the First Defendant delivering up possession of the property to the Claimant on or before 26 September 2001 on which date the Claimant shall arrange for the First Defendant's dinner bed and breakfast at the White Hart Hotel, Launceston.
2) The First Defendant shall deliver up possession of the property by vacating the property for a minimum period of 24 hours and by delivering all keys to the property to the Claimant at the commencement of that period by delivery of the keys to Messrs Kivells at 2 Broad Street Launceston at or before 11.30 am on 26th September 2001 and collection of the keys on or after 12 noon 27 September 2001.
3) On 27th September 2001 the Claimant shall grant to the First Defendant an assured shorthold tenancy of the property within the meaning of section 19A of the Housing Act 1988.
4) The terms of the said shorthold tenancy shall include the following:
(i) a fixed term of 5 years commencing on the date of the grant of the tenancy
(ii) An initial rent of £320 per month payable in advance on 4th day of each month
(iii) . . . .
(iv) Clauses 3 to 5 contained in the Agreement date[d] 20th March 1987 attached hereto.
The above tenancy being for a period in excess of 3 years is required to be by deed and now the parties to the agreement hereby sign this as a deed as witnessed below."
Section 34(1)(b) of the Housing Act 1988
"(1) A tenancy which is entered into on or after the commencement of this Act cannot be a protected tenancy, unless—
(a) . . .
(b) it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was a protected or statutory tenant and is so granted by the person who at that time was the landlord (or one of the joint landlords) under the protected or statutory tenancy;"
"(1) In this Part of this Act, except where the context otherwise requires,—
"tenancy" includes . . . an agreement for a tenancy . . . ;"
Section 3 of the Human Rights Act 1998
Sir John Chadwick:
"34(1) A tenancy which is entered into on or after the commencement of this Act cannot be a protected tenancy, unless – . . .
(b) it is granted to a person . . . who, immediately before the tenancy was granted, was a protected or statutory tenant . . ."
Those words must be read with the direction, in section 45(1) of the Act, that:
"45(1) In this Part of this Act, except where the context otherwise requires, -
'tenancy' includes . . . an agreement for a tenancy . . ."
The first question: did the schedule to the consent order of 20 September 2001 take effect as the grant of a tenancy?
"The above tenancy being for a period in excess of 3 years is required to be by deed and now the parties to the agreement hereby sign this as a deed as witnessed below"
The second question: does the context in which section 34(1)(b) of the 1988 Act falls to be construed require that "tenancy" does not include "agreement for a tenancy"?
"52(2) A tenancy of a dwelling house is not a protected shorthold tenancy if it is granted to a person who, immediately before it was granted, was a protected or statutory tenant of that dwelling house."
The statutory purpose was identified by Lord Justice Purchas in Dibbs v Campbell (1988) 20 H.L.R. 374, 377:
" . . . section 52(2) prevents the landlord from avoiding statutory protection already acquired by tenants under the 1977 Acts by inducing statutory tenants to enter into a protected shorthold tenancy."
"34(1) A tenancy which is entered into on or after the commencement of this Act cannot be a protected tenancy, unless –
(a) it is entered into in pursuance of a contract made before the commencement of this Act; or
(b) it is granted to a person . . . who, immediately before the tenancy was granted, was a protected or statutory tenant . . .; or
(c) it is granted to a person . . . in the following circumstances . . .; or
(d) it is a tenancy in relation to which subsections (1) and (3) of section 38 below have effect in accordance with subsection (4) of that section."
Sections 38(1) and (3) apply to tenancies entered into "before, or pursuant to a contract made before, the commencement of [the 1988] Act".
The Human Rights Act 1998
Lord Justice May:
"The above tenancy being for a period in excess of 3 years is required to be by deed and now the parties to the agreement hereby sign this as a deed as witnessed below."
This was appended to the four operative clauses of the agreement, which, upon Sir John Chadwick's conclusion that the parties changed their intention, were nevertheless unchanged. They still explicitly stipulate for the future grant of an assured shorthold tenancy on 27th September 2001 – an inept way to express an intention that the agreement should have effect as the grant of a tenancy on 20th September 2001. Nor, in my judgment, do the words of the endorsement compel that conclusion. The two line sentence itself distinguishes between "the above tenancy" and the "agreement hereby". "The above tenancy" is an assured shorthold tenancy for a fixed term of 5 years to be granted and commencing on 27th September 2001; and that was indeed, when it was granted, required to be by deed for the reasons which Sir John Chadwick explains. I would construe the first line (in the printed version) as being no more than a statement to that effect. I would then construe the second line as the parties saying that, because the tenancy, to be granted in 7 days time, was required to be by deed, they would sign "the agreement hereby" as a deed also. Strictly this was unnecessary and, if the parties thought that the agreement also had to be by deed, a mistake. But, if so, it was an understandable mistake for parties negotiating and drafting in the corridors of the Truro County Court. On this construction, there is nothing in the endorsement which alters the nature of the agreement, which was an agreement for a tenancy.