Arogol Company Limited v Sher Rajah

A tenancy entered into after the commencement of the Housing Act 1988 may remain protected under section 34(1)(b) even where the new tenancy concerns different premises. The provision focuses on the identity of the landlord and tenant, and contains no limitation requiring the premises to be the same or substantially the same. The exception is not confined to cases involving suitable alternative accommodation. The date on which a new tenancy begins is a question of fact requiring evidence. Where the evidence shows that occupation began in March, the court should not infer an April commencement date without evidential support. Applying those principles, the tenancy was protected under the Rent Act 1977.

The defendant appealed against a possession order made by the Wandsworth County Court in favour of the claimant company. The dispute concerned the defendant’s status in relation to a ground-floor flat and whether he held a tenancy protected by the Rent Act 1977.

The defendant had originally held a protected tenancy from his father. After part of the premises was occupied by other tenants, he resumed occupation of the whole ground floor in March 1990. The county court held that the later tenancy was not protected, treating it as commencing on 1 April 1990 and therefore subject to the newer low-rent regime. The central issues were whether section 34(1)(b) of the Housing Act 1988 applied to a tenancy of different premises and when the tenancy commenced.

1. Appeal allowed. The possession order and associated money judgment were set aside to the extent necessary, and the matter was remitted to the County Court. Costs followed the event.
2. Section 34(1)(b) of the Housing Act 1988 applied. The provision was not limited to a new tenancy of the same or substantially the same premises. Its purpose was to preserve the protection of a tenant who had previously held a protected or statutory tenancy and was granted a later tenancy by the relevant landlord. Suitable alternative accommodation was only one example of the circumstances in which the provision could operate.
3. The requirement concerning the landlord was also satisfied. Although the original tenancy had been granted by the defendant’s father and the later tenancy by his mother, it made no sense to treat the mother as landlord for the later grant but not for the tenancy surrendered at the same time. The court therefore concluded that section 34(1)(b) applied to the tenancy.
4. The county court had no evidential basis for finding that the tenancy began on 1 April 1990. The clear evidence was that the other tenants left in March and that the defendant moved into the whole ground floor then. In the absence of contrary evidence, the tenancy began when he moved in, or at least an agreement for it was made at that time.
5. The defendant was consequently a protected tenant under the Rent Act 1977. Outstanding issues, including arrears, any repair counterclaim and the exercise of discretion concerning possession, were remitted to the County Court.

• Court of Appeal (Civil Division): allowed the appeal against the Wandsworth County Court’s possession order and remitted the outstanding issues to the County Court.
• Wandsworth County Court: granted possession, entered judgment for rent arrears and damages for use and occupation, and held that the tenancy was not protected.