Assured shorthold tenancy

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

Words ‘assured tenancy’ on cover of rent book is 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.

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.

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