Exclusions
Tenancies created on or after 28 February 1997
Andrews v Cunningham
[2007] EWCA Civ 762.
Introduction
Any assured tenancy created on or after 28 February 1997 is automatically an assured shorthold tenancy unless one of the exclusions in Schedule 2A of the Housing Act 1988 Act. The relevant provisions of s19A of the 1988 Act and of the Schedule provide that the assured tenancy will not be a shorthold in the following circumstances:"1. (1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.
(2) The notice referred to in sub-paragraph (1) above is one which –
(a) is served before the assured tenancy is entered into,
(b) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is not to be an assured shorthold tenancy.
2. (1) An assured tenancy in respect of which a notice is served as mentioned in sub-paragraph (2) below.
(2) The notice referred to in sub-paragraph (1) above is one which –
(a) is served after the assured tenancy has been entered into,
(b) is served by the landlord under the assured tenancy on the tenant under that tenancy, and
(c) states that the assured tenancy to which it relates is no longer an assured shorthold tenancy.
3. An assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy.” This case
In this case the landlord had provided the tenant with a rent book which had the words "Assured Tenancy" on the cover. The tenant sought to argue that those words were sufficient to amount to a notice under paragraph 1 or paragraph 2 of Schedule 2A. This would have meant that the s21 notice served by the landlord on the basis that the tenancy was a shorthold was of no effect. The District Judge agreed and refused to make an order for possession.
Appeals
The DJ’s decision was overturned by a Circuit Judge, whose decision was upheld on a further appeal to the CA. The words on the front of the rent book were not a notice within the meaning of the Schedule because:“the statement on the cover ‘Assured Tenancy’ is not a statement ‘that the assured tenancy to which it relates is not to be an assured shorthold tenancy’ (para 1(2)(c)), because an assured shorthold tenancy is itself a type of an assured tenancy (see section 19A)” (Lawrence Collins J at para 39). Or, in the words of Wilson J at para 51:”[the] argument is hopeless because the rent book was as apt to an assured shorthold tenancy as it was to an assured non-shorthold tenancy and it was not stated therein that the tenancy was of the latter rather than the former character.” There were other difficulties in the way of the tenant. One of them was that at the time that the tenancy was granted the landlord was a resident landlord. This meant that the tenancy could not be assured at all and s19A of the 1988 provides that a relevant “assured tenancy” is an assured shorthold tenancy “unless it falls within any paragraph in Schedule 2A”.
Paragraph 3
As can be seen from the provisions quoted above, one of the circumstances in which an assured tenancy is not a shorthold is where the “assured tenancy which contains a provision to the effect that the tenancy is not an assured shorthold tenancy”. An issue that arose in the case was whether or not this paragraph requires a written agreement containing such a “provision”.
Lawrence Collins J thought that it almost certainly did because:“enabling a tenant to simply defend a claim for possession on the ground that it was orally agreed that the tenancy was not an assured shorthold tenancy would be contrary to the whole regime of assured shorthold tenancies, and would result in unfounded claims that there was an oral agreement that there should be a non-shorthold tenancy having to go to trial." However, as the point was not fully argued and was of some considerable importance the Court did not come to any definite conclusion on the issue.
Section 20 notices
Prior to 28 February 1997 it was necessary for a landlord to serve a notice under s20 of the Housing Act 1988 if he wished to create an assured shorthold tenancy. Often mistakes were made in those notices. This section contains a detailed article on three Court of Appeal cases that set out the approach to adopt where such mistakes were made. It also deals with a subsequent case on the same point and another on service of the s20 notice on the tenant's agent. See "Section 20 notices" in contents column on the left.
Section 21 notices
To bring an assured shorthold tenancy to an end it is necessary to serve a s21 notice. There are two types of notice; one to be served under s21(1) and the other to be served under s21(4). The article on s21 notices (see contents column on the left) deals with the requirements of the two different types of notice and the circumstances in which one should be served rather than the other.
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