Andrews & Anor v Cunningham

For post-28 February 1997 assured tenancies, the Housing Act 1988, section 19A, creates an assured shorthold tenancy by default unless an exclusion in Schedule 2A applies.

Schedule 2A paragraph 1 requires a served written notice stating that the tenancy is not to be an assured shorthold tenancy. A rent book headed “Assured Tenancy” does not suffice, because an assured shorthold tenancy is itself an assured tenancy. The court left open whether paragraph 3 can be satisfied by an oral provision. Even on that assumption, a general agreement for long-term security of tenure is insufficient, particularly where the resident-landlord provisions meant that no assured tenancy existed when the agreement was made.

The respondents, executors of William George Hodges’ estate, sought possession of a flat occupied by the appellant, Graham Cunningham. He had entered into an oral arrangement with Mr Hodges in 1999, while Mr Hodges occupied another flat in the same building. After Mr Hodges’ death and the expiry of the resident-landlord exclusion, the respondents served a notice under section 21 of the Housing Act 1988.

A District Judge found an assured non-shorthold tenancy, relying on a rent book marked “Assured Tenancy” and an agreement for long-term security. His Honour Judge Hayward allowed the respondents’ appeal and ordered possession, holding that the statutory requirements had not been met. The central issues were whether the rent book satisfied Schedule 2A paragraph 1, and whether the oral agreement engaged paragraph 3.

1. Appeal dismissed. The Court of Appeal unanimously upheld the possession order. Lawrence Collins LJ gave the principal reasoning; Wilson LJ concurred, and Waller LJ agreed with both judgments.
2. Resident-landlord exclusion. Under section 1(2) of the Housing Act 1988, read with paragraphs 10 and 20 of Schedule 1, no assured tenancy existed while Mr Hodges occupied a dwelling-house in the same building as his only or principal home, or for the statutory period after his death. The tenancy was therefore a common-law periodic tenancy during the relevant period and became an assured monthly periodic tenancy only after November 2003. The statutory default in section 19A could not retrospectively make the 1999 agreement an assured tenancy.
3. Schedule 2A paragraphs 1 and 2. The statutory requirements had to be identified and satisfied. Paragraph 1 required a notice served before the assured tenancy was entered into by the intended landlord on the intended tenant, stating that the tenancy was not to be an assured shorthold tenancy. The rent book failed in substance because “Assured Tenancy” included assured shorthold tenancies. The court also held that “served” referred to a written notice. The approach to statutory notices in Fernandez v McDonald [2003] EWCA Civ 1219 was applied. Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 749, concerned with a contractual notice, did not justify disregarding specific statutory requirements.
4. Schedule 2A paragraph 3. The court left open the important question whether the provision had to be written, because full argument had not been heard. Even assuming that an oral agreement could suffice, the finding of long-term security of tenure did not amount to a provision that the tenancy was not to be an assured shorthold tenancy. It would require an expanded and contingent construction concerning Mr Hodges’ cessation of residence or death. The agreement was also made when no assured tenancy existed, and the statutory expression “security of tenure” could describe both types of assured tenancy.
5. The appeal was accordingly dismissed. No separate costs or remittal order was stated.

• Court of Appeal (Civil Division) [2007] EWCA Civ 762: dismissed the appeal and upheld the possession order.
• Hastings County Court: on 11 October 2006, His Honour Judge Hayward allowed the appeal from the District Judge, held that the appellant was an assured shorthold tenant, and ordered possession.
• District Judge Pollard, Hastings County Court: on 30 June 2006, found that the appellant was an assured non-shorthold tenant, relying on the rent book and the parties’ agreement concerning long-term security of tenure.