Goodman v Evely

A tenancy expressed to continue automatically after an initial fixed term is not necessarily a periodic tenancy. The court must apply the statutory definitions to the tenancy’s actual terms. A tenancy is not excluded from the definition of a fixed term tenancy merely because it provides for continuation from month to month after the initial term. Where the continuation is for a different period from the initial term, the tenancy is not a periodic tenancy pure and simple. It may therefore qualify as an assured shorthold tenancy under section 20(1)(a) of the Housing Act 1988.

The claimant landlord granted the defendants an unfurnished bungalow under an agreement described as an assured shorthold tenancy under Part 1 of the Housing Act 1988. The agreement provided for a term certain of one year and, unless possession proceedings were threatened, continuation thereafter from month to month.

After the initial year, the defendants remained in occupation. The landlord served notice and sought possession under section 21. A district judge held that the tenancy was assured but not assured shorthold. On appeal, the county court judge held that it was a fixed-term tenancy followed by a separate periodic tenancy, or alternatively that it was not periodic during the fixed term. The tenant appealed to the Court of Appeal on the question whether the tenancy was an assured shorthold tenancy.

1. Appeal dismissed. The tenancy was an assured shorthold tenancy, and the possession order was upheld.
2. The court assumed, in the tenant’s favour, that the agreement created a single tenancy rather than two separate tenancies. If there had been two tenancies, the later tenancy would have fallen within section 20(4) of the Housing Act 1988.
3. Under section 45(1), a fixed-term tenancy means any tenancy other than a periodic tenancy. The agreement did not create a periodic tenancy pure and simple because its automatic continuation after the initial year was from month to month, rather than for the same period as the initial term.
4. The tenancy was therefore a fixed-term tenancy for the purposes of section 45(1). It satisfied section 20(1)(a), which required an assured tenancy granted for a term certain of not less than six months. The wording of section 20(1)(a) also supported that construction, since otherwise the reference to a term certain would add nothing.
5. Section 20(4) provided further support. Where a fixed-term assured shorthold tenancy continued as a monthly tenancy because the landlord had not taken possession proceedings, the statutory continuation was itself an assured shorthold tenancy. There was no reason to reach a different result merely because the agreement expressly stated what would otherwise have happened automatically.
6. The earlier regime under section 52(5) of the Housing Act 1980, considered in Gent v De la Mere [1987] 20 HLR 199, provided no reason to restrict the operation of the 1988 Act. The court left open the precise scope of section 20(4), including the meaning of a new tenancy that “comes into being”.
7. Costs were ordered against the Legal Aid Board in the appeal and below, with ten weeks to apply to set aside that order.

• Court of Appeal (Civil Division): Appeal from the order of His Honour Judge Overend in the Plymouth County Court, which had allowed the landlord’s appeal from the district judge and made an order for possession. The Court of Appeal dismissed the tenant’s appeal.
• Plymouth County Court: The county court judge held that the tenancy was a fixed-term tenancy followed by a separate periodic tenancy, or alternatively was not periodic during the fixed term, and ordered possession.
• Plymouth County Court, District Judge: The district judge had held that the tenancy was assured but not assured shorthold and refused possession.