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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barrow & Anoe v Kazim & Ors [2018] EWCA Civ 2414 (31 October 2018) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2414.html Cite as: [2018] WLR(D) 671, [2018] EWCA Civ 2414, [2019] WLR 3168, [2019] 2 P &CR 1, [2019] HLR 14, [2019] 1 WLR 3168 |
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
Her Honour Judge Baucher
Claim No. C01EC627
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NEWEY
and
LORD JUSTICE LEGGATT
____________________
(1) MR ALKALI ![]() (2) ![]() |
Appellants |
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- and - |
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(1) ISABEL ![]() (2) ![]() ![]() (3) ![]() |
Respondents |
____________________
Mr Asela Wijeyaratne (instructed by YVA Solicitors) for the Respondents
Hearing date: 17 October 2018
____________________
VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Newey:
"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."
"I do not consider the language of the statute requires the landlord to be the landlord at the date of the issue of the notice. The essential criterion is whether he is entitled to the premises. In accordance with section 21 that issue has to be determined by the court after the coming to an end of the assured shorthold tenancy. The wording under the statute is 'would be entitled to possession', and thus the relevant date is the date upon which possession is sought. On that date, 19th March, the superior landlord was entitled to possession because the mesne tenancy had expired."
"a court shall make an order for possession of the dwelling-house if it is satisfied … 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".
Taken at face value,
this language might suggest that the Court should be focusing on the position at the date of the hearing and, hence, that it is good enough that the requisite notice has been given by the person who is then the "landlord". However, Mr Asela Wijeyaratne, who appeared for the respondents, did not espouse this interpretation, and he was clearly right not to do so. The construction would make no sense and cannot have been Parliament's intention. It would imply that a notice could have been given by someone who was not the "landlord" (and might, in fact, have had no interest at all in the property) either when the notice was served or on the date specified as that on which possession was required. It would suffice that the person had become the "landlord" by the time the case was before the Court.
"includes any person from time to time deriving title under the original landlord and also includes, in relation to a dwelling-house, any person other than a tenant who is, or but for the existence of an assured tenancy would be, entitled to possession of the dwelling-house".
"(f) The expressions 'landlord,''tenant,''mortgagee,' and 'mortgagor' include any person from time to time deriving title under the original landlord, tenant, mortgagee, or mortgagor;
(g) The expression 'landlord' also includes in relation to any dwelling-house any person, other than the tenant, who is or would but for this Act be entitled to possession of the dwelling-house…."
"They [i.e. the plaintiff building society] are not his [i.e. the tenant's] landlords; they never have been. The evidence makes it, I think, tolerably clear that they have never accepted his tenancy as one which binds them, and it is quite clear that there is no contractual relationship between [the tenant] and the plaintiffs, either imported by the statute or otherwise."
"I think, without attempting any precise statement or definition of what is itself a definition, that the explanation may be found in this: the addition by para. (g) is no doubt an addition to a definition which extends 'landlord' to persons deriving title under a landlord: in certain circumstances, to which I must presently refer, a sub-tenant is entitled to the protection of the Acts; there you would have a case in which a head lessor would be suing for possession against a sub-tenant, and the Act of 1920 makes provision by s. 5, sub-s. 5 , and s. 15, sub-s. 3 , for preserving the right to possession of a sub-tenant, and the sub-tenant becomes, or may become, the statutory tenant of the head landlord. Of course, in such a case as that, in construing thevarious
provisions of the Acts, the landlord, quoad the sub-tenant, is a person not deriving title under that sub-tenant's landlord, but is a person whose title is superior to that sub-tenant's landlord. Furthermore, as I have already intimated, and as is, of course, well known, in certain circumstances (when, for example, an effective notice to quit has been given) the contractual tenancy between A and B may come to an end, and there then is created what is known as a statutory tenancy, B remaining in possession as a 'statutory tenant' of A. It has been said in these courts that a statutory tenancy, as the phrase is commonly used, is a somewhat inapposite expression, for it confers on the so-called statutory tenant no estate or interest in the land. He cannot part with it or dispose of it, and in certain circumstances the right to possession, which is its principal feature, may pass to persons who would be quite different from the persons who would get the benefit of a contractual tenancy when a tenant dies. It would appear, therefore, more than possible that this addition to the definition in para. (g) was put in (and I think something would have had to be put in) to make the word 'landlord' where a statutory tenancy has been created, apply in the relationship being then dealt with by the Act, between the person who would be entitled to possession apart from the Act and the statutory tenant."
"[Counsel for the tenant] relies, and relies rightly, on the definition of 'landlord' in s. 12, sub-s. 1 (g). I agree with what the Master of the Rolls said, that there must be some limitation on that definition. Some extension of the definition in para. (f) is necessary to meet the situation created by the extension of the benefits conferred by the Acts to sub-tenants. I am not quite sure whether the words of para. (g) are necessary to bring within the scope of the Act what I may call the statutory landlords, because when we get to the expansion of the word 'tenant' it is not thought necessary to use words which cover expressly a statutory tenant. It may be the position between what are called statutory landlords and statutory tenants was thought to be sufficiently covered without these words.
I also think it is clearly necessary that some words should be inserted in the definition in the Act having regard to the fact that in the latter part of this sub-section the word 'tenant' is extended so as to include a widow and other members of the family who may be residing with a tenant who has died."
"I would agree that at the time of the signing of the agreement of 11 June 1984 [i.e. that with the tenant] the plaintiff in the present case could not properly be described as someone who, but for section 98(1) [of the Rent Act 1977], would have been entitled to possession of 7, Finch Road. Contractually, he was not entitled to possession until completion of the purchase."
The fact, therefore, that the plaintiff was to be entitled to possession in the future did not make him a person who "but for Part VII
of this Act would be … entitled to possession of the dwelling-house".
i) To be effective, a notice under section 21 of the 1988 Act must come from the "landlord" at the date that the notice is given;
ii) Where a mesne tenancy exists, the fact that it is to come to an end by the date specified in a section 21 notice will not render the head landlord a "landlord" at the date of the notice;
iii) In the present case, the only "landlord" when the respondents gave notice to the appellants was the Agency;
iv) The notice did not, therefore, satisfy the requirements of section 21(1)(b).
Lord Justice Leggatt:
Lord Justice Henderson: