Secretarial Nominee Co Ltd v Thomas & Ors

A transitional provision preserving Rent Act protection applies only for the benefit of a person who was already a protected or statutory tenant when the Housing Act 1988 commenced. A new tenancy may retain protected status where that existing tenant takes it alone or jointly with new tenants. The protection does not pass indefinitely through successive tenancies once the original protected tenant has left. The statutory reference to a person is directed to the protected tenant concerned, and the definition of “the tenant” in section 45(3) does not require every former joint tenant to join the new tenancy.

The landlord sought possession of residential premises occupied by Mr Thomas. The premises had been subject to a protected tenancy before the commencement of the Housing Act 1988. After that date, successive annual tenancies were granted to changing groups of joint tenants. Mr Thomas became a joint tenant after the original Rent Act tenant had ceased to participate.

The district judge held that the transitional protection applied and that Mr Thomas remained a protected tenant. The landlord appealed, contending that section 34(1)(b), read with section 45(3), required all immediately preceding joint tenants to be included. Mr Thomas contended that protection could pass to any new joint tenant. The central issue was whether the transitional provision protected a tenancy in which the original Rent Act tenant no longer participated.

1. Appeal allowed. Mr Thomas was not a Rent Act tenant protected by section 34(1)(b) of the Housing Act 1988, so the landlord was entitled to possession on the parties’ common ground.
2. The purpose of section 34(1)(b) was to carry the protection of an existing Rent Act tenant into the new assured-tenancy regime. Where that tenant took a post-commencement tenancy jointly with new tenants, the resulting joint tenancy could be protected, because a joint tenancy had one status.
3. The protection was limited to the person who had been a protected or statutory tenant at the commencement of the Act. The words “immediately before the tenancy was granted” did not remove that inherent temporal requirement. Accordingly, the protection could not pass through a chain of tenancies such as A, AB, BC and CD after the original protected tenant had left.
4. The indefinite article in “a protected or statutory tenant” was consistent with protecting the particular existing tenant and did not require all joint tenants to participate. The court construed “tenant” according to statutory purpose, applying the contextual approach illustrated by Lloyd v Sadler [1978] 1 QB 774.
5. The court followed the reasoning in Laimond Properties Ltd v Al-Shakarchi (1998) 30 HLR 1099 that section 34(1)(b) was designed to prevent an existing Rent Act tenant losing protection by accepting a new tenancy after 15 January 1989.

Lord Justice Auld agreed with the judgment of Lord Justice Rix.

• Court of Appeal (Civil Division): The appeal from the Central London Civil Justice Centre was allowed. The court held that Mr Thomas was not protected by section 34(1)(b) of the Housing Act 1988.
• Central London Civil Justice Centre: District Judge Langley dismissed the landlord’s possession claim, holding that Mr Thomas had become and remained a protected tenant.