The court's discretion, where it was "just and equitable", to dispense with the requirement that a landlord must have served on the tenant, at the time of the creation of the tenancy, written notice that he might require the property back for his own or his spouse's use, so as to entitle him to terminate an assured tenancy under ground 1 of Schedule 2 to the Housing Act 1988, was not limited to exceptional cases.
The Court of Appeal allowed an appeal by the plaintiff, Rita Madeleine Boyle, against the dismissal by Judge Maher, sitting in Wandsworth County Court on 3 August 1995, of her claim for possession of a flat at 207b Castelnau, Barnes, London, which she had let to the defendant, Richard Hugh Verrall.
Both litigants appeared in person.
Lord Justice Auld said Mrs Boyle had let the flat to Mr Verrall on 30 March 1993 at a rent of pounds 650 per month, later increased to pounds 700 per month. It was, the judge held, an assured tenancy under section 1 of the Housing Act 1988, terminable by Mrs Boyle only on one of the grounds specified in Schedule 2 to the Act.
The issue was whether Mrs Boyle was entitled to terminate the tenancy on ground 1, namely that she required the property as a principal home for her husband. A precondition of entitlement under that ground was that she had, before entering into the tenancy agreement, notified Mr Verrall in writing that she might require possession for that reason, or, failing such notice, that she could satisfy the judge that it was just and equitable to dispense with it.
The tenancy had been drawn up on a standard form for an assured shorthold tenancy, as defined in section 20 of the 1988 Act, and it was clear that this was the tenancy Mrs Boyle intended to create. She said she had served on Mr Verrall, when handing over the keys, a written notice under section 20, but the judge was not convinced she had done so. But it was plain that she intended to create an assured shorthold tenancy and that Mr Verrall knew that was her intention and that she had made a mistake in not completing the notice.
In September 1994, Mrs Boyle stated in a letter to Mr Verrall that she and her husband would soon need the flat back for their own use. Mr Verrall, who was unemployed and relied on housing benefit to pay the rent, refused to move.
On her claim for possession the judge held that, because of the lack of a section 20 notice, the tenancy was an assured, not assured shorthold, tenancy. He further held that in the absence of written notification that possession might be required under ground 1(b) of Schedule 2, it would have to be an "exceptional case" to justify dispensing with such written notice where, as he found, no oral notice was given.
Ground 1 of Schedule 2, if established by a landlord, entitled him to possession. The judge had no discretion. The landlord did not have to show that his requirement of the property for his or his spouse's principal home was reasonable. Discretion only came into play where a landlord did not serve the requisite written notice at the time of entering into the tenancy and the court had to decide whether it was "just and equitable" to dispense with such notice.
In determining what was just and equitable for this purpose the court should look at all the circumstances of the case. Clearly, if oral notice was given, it might be an important factor favouring dispensation. But it did not follow that oral notice was a pre-requisite of such a decision. Nor was the absence of oral notice a reason for restricting dispensation to the "exceptional case".
Had the judge applied the correct test, he could not possibly have come to any conclusion other than that it was just and equitable to dispense with the requirement of written notice.
Paul Magrath, BarristerReuse content