Naidu v Yenula Properties Ltd

An assured shorthold tenancy under the pre-amendment Housing Act 1988 required satisfaction of the statutory conditions, including service of the prescribed notice before the assured tenancy was entered into. Section 20 did not require personal service on the prospective tenant where the tenant had an authorised agent. Ordinary agency principles applied. A solicitor or licensed conveyancer had no general implied authority to accept such a notice, but authority could arise from the particular transaction and instructions given. An appellate court may exceptionally interfere with findings of fact where the trial judge overlooked or mis-evaluated important evidence, failed to test oral evidence against documents and probabilities, or permitted the real issues to emerge improperly at trial.

The tenant occupied a residential flat under an agreement which the landlord claimed was an assured shorthold tenancy. The tenant contended that the tenancy had commenced before 4 August 1995 and that no valid section 20 notice had been served before its commencement.

The Central London County Court held that the tenancy was an assured tenancy. On appeal, Lloyd J reversed that decision and declared that the tenant was entitled to an assured shorthold tenancy. The tenant brought a second appeal concerning the date on which the tenancy was entered into, service of the section 20 notice, and the authority of the tenant’s licensed conveyancer to receive it.

1. Appeal dismissed. The evidence did not support the finding that the tenancy had been entered into on 1 August 1995. The documentary evidence and the probabilities pointed to completion on 4 August. The trial judge had overlooked or mis-evaluated important evidence, failed to give sufficient weight to the fact that the tenant’s late factual case had not been put to a principal witness, and failed to test the oral evidence against the documents and inherent probabilities.
2. Those circumstances were exceptional and justified the appellate judge in departing from the trial judge’s findings of fact, notwithstanding the usual restraint applicable to an appellate tribunal reviewing a judge who had heard the witnesses.
3. Section 20(2)(c) of the Housing Act 1988 required service of the notice on the person who was to be the tenant, but did not exclude service through an authorised agent. The statutory language was to be given its natural meaning without a predisposition in favour of either landlord or tenant. The position was distinguishable from a mandatory and exhaustive statutory service code.
4. There was no general rule that solicitors had implied authority to receive notices. Authority depended on the particular transaction and the scope of the instructions. A solicitor or licensed conveyancer could be an authorised channel of communication for matters forming part of, or incidental to, an authorised transaction.
5. On the facts, the tenant’s instructions on 4 August to do what was necessary to obtain access to the premises and complete the transaction gave the conveyancer actual authority to accept the section 20 notice. It was unnecessary to decide the alternative case based on implied authority.
6. The court also endorsed the need to examine the particular facts when assessing a solicitor’s authority, as illustrated by Westway Homes Ltd v Moores.

Lord Justice Rix and Lady Justice Arden agreed. The appeal was dismissed by an agreed order, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Appeal dismissed. Leave to appeal to the House of Lords refused.
• High Court, Chancery Division: Lloyd J allowed the landlord’s appeal and declared that the tenant had been entitled to an assured shorthold tenancy.
• Central London County Court: HH Judge Bradbury declared that the tenancy was an assured tenancy.