Requirements for assured shorthold tenancy

Requirements for assured shorthold tenancy

Until 28 February 1997, when amendments to Housing Act 1988 introduced by Housing Act 1996 s96 came into force, it was a mandatory requirement for the creation of an assured shorthold tenancy that the tenancy be for a fixed term of not less than six months and that the landlord should, before the tenancy was entered into, serve a notice in the prescribed form stating that the tenancy would be an assured shorthold tenancy (a ‘s20 notice’) (see Housing Act 1988 s20(2) and the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 SI No 2203).

However, for tenancies granted on or after 28 February 1997, these formalities do not apply. There is now no requirement for a statutory notice before the grant of an assured shorthold tenancy. All tenancies, even if granted orally, for periodic terms or for fixed terms of less than six months, are likely to be assured shorthold tenancies unless landlords specify otherwise (see Housing Act 1988 s19A).

Andrews v Cunningham [2007] EWCA Ci 7 2; 2 July 2007

Words ‘assured tenancy’ on cover of rent book not a statement that tenancy would not be an assured shorthold tenancy Mr Cunningham was granted an oral tenancy of a ground floor flat. His
landlord gave him a rent book which had the words ‘Assured Tenancy’ on the cover. After the landlord’s death, his executors claimed that Mr Cunningham was an assured shorthold tenant and served a Housing Act 1988 s21 notice. District Judge Pollard dismissed a possession claim, holding that the rent book was a notice under Sch 2A para 1. On appeal, HHJ Hayward held that he was an assured shorthold tenant and made an order for possession of the flat. Mr Cunningham appealed The Court of Appeal dismissed his appeal. The words on the cover of the rent book were not a notice under para 1 or para 2. The words ‘assured tenancy’ on the cover were not a statement ‘that the assured tenancy to which it relates is not to be an assured shorthold tenancy’ (para 1(2)(c)),
because an assured shorthold tenancy is itself a type of assured tenancy. Second, if there were any doubt about that, the schedule to the rent book contained a notice to the tenant that, if the rent was payable weekly the rent book had to contain the notice properly filled in.

The significance of that notice was that it confirmed that the expression ‘assured tenancy’ on the first page was not confined to non-shorthold tenancies, since it said ‘if you have an assured tenancy, including an assured shorthold tenancy …’. Third, the reference in para 1 to ‘a notice’ being ‘served’ was a reference to the service of a written notice. The rent book
was clearly intended and used simply to record the payment of rent.

K3.2 Bedding v McCarthy ( 99 ) 27 HLR 0 ; [ 994] 4 EG , CA

Section 20 notice could be served on the same day as tenancy entered into; tenancy entered into, and to start, on 18 December 1990 and expiring 17 June 1991 was for six months The tenant entered into an ‘assured shorthold’ tenancy for a term of six months commencing on 18 December 1990 and expiring on 17 June 1991. The notice of assured shorthold tenancy was given to the tenant on the morning of 18 December. The tenancy agreement was signed on the same day and the tenant went into possession on that afternoon. It was contended by the tenant that it could only be an assured shorthold tenancy if the term of the tenancy included the whole of that day. Otherwise it was not a tenancy ‘of not less than six months’ within the meaning of Housing Act 1988 s20(1)(a) because the tenancy was only granted part way through the day. Alternatively, if the tenancy was deemed to date back to the beginning of 18 December, the notice was not served before ‘the tenancy was entered into’ in accordance with s20. The Court of Appeal dismissed these submissions, holding that in ascertaining when a term commences, fractions of days are disregarded and that it was a pure question of fact whether the notice was served before the tenant entered into the tenancy. Service earlier on the day when the
tenancy commences is sufficient.

K3.3 Bhopal v Walia(2000) 2 HLR 02, CA

Written agreement for assured shorthold tenancy with a higher rent was a sham Mr Walia entered into an oral assured shorthold tenancy with a rent of £300 per calendar month. Later he signed an agreement which falsely stated that the rent was £450 per month, because the landlords wanted to mislead their bank about their income. The landlords then sold the property with vacant possession. Mr Walia refused to move out and the new landlord brought possession proceedings claiming arrears of rent, calculated at the rate of £450 per month. HHJ Hague QC made a suspended possession order. Mr Walia appealed successfully. The written agreement was a sham in the sense described by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802D. It was a document intended to give to third parties or to the court an appearance of creating between the parties legal rights and obligations different from the actual legal rights
and obligations which the parties intended to create. As a sham document it gave rise to no legal rights or obligations and did not have the effect of varying the existing oral tenancy agreement. The purchasers could be in no better position than the original landlord through whom they claimed. The tenant was not estopped from asserting a tenancy agreement other than that contained in the sham agreement against his original landlord’s successors in title. The new landlords had not placed any reliance on the written agreement when purchasing, since they had contracted for vacant
possession, and had made no enquiry about the terms of occupation. Furthermore, the written agreement had not been designed to mislead the purchasers.

K3.4 Manel v Memon (200 ) HLR 2 ; [2000] EG 74; [2000] 2 EGLR 40; (2000) Times 20 April, CA

Validity of s20 notice; need for district judges to consider documents rigorously when landlords use accelerated possession procedure The claimant landlord brought proceedings under the accelerated possession procedure (CCR Ord 49 r6A) against the defendant, claiming that he was a pre-1997 assured shorthold tenant. The tenant filed a reply, denying that the landlord had served a valid s20 notice because the notice served omitted the four bullet points with instructions and advice to the tenant set out in Form 7 of the Assured Tenancies and Agricultural Occupancies
(Forms) Regulations 1988 SI No 2203. The Court of Appeal held that the bullet points and, in particular, the exhortation to take legal advice and the statement that the giving of the notice did not commit the tenant to take the tenancy were part of the substance of the notice. Without them, the notice was not ‘substantially to the same effect’ as the prescribed form within the meaning of para 2 of the regulations. The notice was defective and a possession order made by the district judge was set aside. The Court of Appeal expressed concern that the district judge adopted the accelerated possession procedure and made a possession order without giving the tenant the opportunity to make representations at an oral hearing. Holman J said: [The accelerated possession procedure] is a robust machinery. It depends upon district judges rigorously considering the documents which have been filed. Some replies may be little more than a plea, however genuine for mercy. But if, on the face of the reply, a matter has been raised which, if true, might arguably raise a defence; or if the documents filed by the claimant might arguably disclose a defect in his claim, then the district
judge must necessarily be ‘not satisfied’ within the meaning of CCR Ord 49 r6A(16) and a hearing on notice must be fixed.

K3.5 Osborn and Co Ltd v Dior [200 ] EWCA Ci 28 ; [200 ] HLR 4

Omission of particulars of landlords in s20 notice not fatal In two cases landlords served notices which they claimed complied with Housing Act 1988 s20. In one case, the notice was in Form 7 of the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 SI No 2203, but was signed by the landlord’s agent. The spaces on the form for entry of the particulars of the landlord were left blank, and the requisite Requirements for assured shorthold particulars of the agents were entered in the appropriate box. In the other case, Form 7 was again used, but the spaces for the particulars of the landlord were completed with the details of a company which was not in fact the landlord. In both cases, circuit judges made possession orders and the tenants appealed. The Court of Appeal dismissed both appeals. The test that the court has to apply is whether, notwithstanding any error or omission, the notice is substantially to the same effect as that prescribed by the regulations. Although parliament had clearly attributed importance to the formality of s20 notices, it could not have intended the omission of the particulars of the landlord to be fatal. Tenants can take steps to identify the landlord by enquiries with the agents or by reference to the tenancy agreement. Even if the particulars of the landlord are absent, a notice is still substantially to the same effect where the agent has signed and given its particulars.

K3.6 Ravenseft Properties Ltd v Hall[200 ] EWCA Ci 20 4; [2002] HLR ; [2002] EG ; (2002) Times January

Applying a purposive approach, s20 notice was valid despite incorrect start date In August 1996 Ravenseft granted Ms Hall a tenancy of a flat purporting to commence in June 1996 and expiring in June 2000. The tenancy agreement provided that the landlord intended to create an assured shorthold tenancy (Housing Act 1988 s20(1)) and that the lessee acknowledged that she had been served with a notice complying with s20(2). In August 2000 Ravenseft issued a possession claim. Ms Hall defended on the basis that the s20 notice was defective as it was not in the form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 SI No 2203 or a form ‘substantially to the same effect’, because it gave the June date as the date of the commencement of the tenancy rather than the date on which the tenancy agreement had been executed (ie, in August). The judge held that the notice was valid. Ms Hall appealed unsuccessfully. The start date of the tenancy was not correctly stated in the notice. The date which should have been inserted in the ‘from’ box was the date of the tenancy and not the date from which the term to be created by it was calculated. The tenancy created by the tenancy agreement could not begin before the date of execution of the agreement (Roberts v Church Commissioners for England [1972] Ch 278).

The decision in Panayi v Roberts (1993) 25 HLR 421, [1993] 2 EGLR 51, CA

was to the effect that a notice which gave the wrong date (in that case the termination date) was not ‘substantially to the same effect’ as one which gave the correct date, at least in a case where the mistake was not obvious. However, in the light of the purposive approach sanctioned in Manel v Memon and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (N2.3), the question was simply whether, notwithstanding any errors or omissions, the notice was substantially to the same effect in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy. Despite the error as to the start date, the present notice had done that. It was therefore valid.

K3.7 White v Chubb; Kasseer v Freeman [200 ] EWCA Ci 20 4; [2002] EG ; (2002) Times January

Despite errors s20 notices were valid as they were substantially to the same effect as the prescribed form In 1993 Mr White granted Mr Chubb an assured shorthold tenancy for a term of six months commencing on 1 October 1993. Mr White gave Mr Chubb a notice under Housing Act 1988 s20(2) giving an incorrect end date of 1 May 1994 instead of 1 April 1994. Mr White took possession proceedings and the judge held that the notice was defective as it was not in the form prescribed by the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 SI No 2203 or a form ‘substantially to the same effect’ because of the incorrect end date. Mr White appealed. In 1994 Ms Freeman granted Mr Kasseer a one-year tenancy. When Ms Freeman sought possession, Mr Kasseer argued that the notice under s20 was invalid because it misstated the rent assessment committee’s power of investigation and misstated the tenant’s rights. The judge upheld the notice on the basis that, considered as a whole, it had substantially the same effect as a notice in the prescribed form despite the errors. Mr Kasseer appealed. The Court of Appeal held that both notices were valid and that, accordingly, the tenancies were assured shorthold tenancies. There is no statutory or common-law doctrine of ‘obvious mistake’ or any requirement to apply a two-stage test in which the court has first to consider whether the error in the notice is obvious or evident before proceeding to consider whether the notice read in context is sufficiently clear to leave a reasonable recipient in no reasonable doubt about the terms of the notice. There is only one statutory question, which is whether, notwithstanding any errors or omissions, the notice is ‘substantially to the same effect’ as a correct notice in accomplishing the purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy (Mannai Investment Co
Ltd v Eagle Star Life Assurance Co Ltd (N2.3)). This is a matter of fact and degree in each case. The resolution of that question is not a decision on a point of law that is binding on later courts. The notice served on Mr Chubb satisfied that test because the mistaken end date, even if not obvious to the reasonable recipient, did not prevent the notice when read by the reasonable reader from fulfilling the function it was meant to perform. The notice served on Mr Kasseer, despite inaccurately stating the law in a misleading way, had conveyed to the tenant the substance of the prescribed form and satisfied the statutory objective.

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