Barrow & Anoe v Kazim & Ors

For an assured shorthold tenancy, a notice under section 21(1)(b) of the Housing Act 1988 must be given by the landlord at the date of service. Where a mesne tenancy still exists, a superior landlord does not become the relevant landlord merely because that tenancy will end before the date stated in the notice. The statutory definition of landlord looks to the position at the relevant time if the assured tenancy did not exist. It does not require the court to project forward to a future entitlement to possession. A notice served by someone who was not then the landlord is ineffective.

The respondents owned a building leased to Anthea Investments Limited, which granted the appellants fixed-term assured shorthold tenancies of flats. The fixed terms later became periodic tenancies under the Housing Act 1988. The respondents served a notice intended both to end the mesne tenancy and to satisfy section 21(1)(b). The mesne tenancy ended on 19 March 2016, after which the appellants became tenants of the respondents under section 18. A District Judge made possession orders, and Her Honour Judge Baucher dismissed the appellants’ appeal. The central issue was whether the respondents were the relevant landlord when the notice was served.

Lord Justice Newey gave the leading judgment, with Lord Justices Leggatt and Henderson agreeing.

1. Disposition. The appeal was allowed. The notice did not satisfy section 21(1)(b) of the Housing Act 1988.
2. Section 21(1)(b) requires the notice to be given by the landlord at the date when it is served. Construing landlord as a person who became landlord only by the hearing date would produce an incoherent result, since a notice could then have been served by someone with no relevant interest when it was given.
3. The definition in section 45 refers to the position at the particular time in question if the assured tenancy did not exist. It does not require the court to look to a future date specified in the notice. While the Agency’s mesne tenancy continued, the respondents would not have been entitled to possession even if the appellants’ assured tenancies had not existed. The Agency therefore remained the relevant landlord, and the respondents were not.
4. The conclusion was consistent with Appleton v Aspin [1988] 1 WLR 410, where future contractual entitlement did not establish present entitlement to possession. Dudley and District Benefit Building Society v Emerson [1949] Ch 707 did not support the respondents’ wider argument. The passages relied upon were accepted as obiter, and the decision was principally useful in explaining the historical catch-all definition of landlord.
5. The possible inconvenience to a superior landlord did not justify a different construction. The mesne tenant could give notice, and the delay resulting from the correct construction could not exceed two months.

• Court of Appeal (Civil Division): Allowed the appeal from the County Court at Central London. [2018] EWCA Civ 2414.
• County Court at Central London: District Judge Manners made possession orders on 21 December 2016. Her Honour Judge Baucher dismissed the appellants’ appeal on 6 October 2017.