[Edit, time slightly later on. In the comments to her post Tessa suggests that the case discussed below was not a judgment at all but merely adjourned from the undefended list for a hearing of the issues. So none of what follows is of much significance.]
A very interesting post over on Landlord Law by Tessa Shepperson.
Apparently a Deputy District Judge of her acquaintance, faced with a Notice to Quit served on a (ex) secure tenant who had moved out of the rented property, discovered that the Council tenancy agreement specified that the
tenant could only be evicted after service of a notice of possession as provided under the provisions of the Housing Act 1985
As no NSP had been served, the DDJ concluded he could not make a possession order, there being no reason why the landlord could not enlarge security of tenure under the tenancy agreement in a binding manner, following the model of Welsh -v- Greenwich London Borough Council on extending repairing liability.
No doubt the ‘tenant’ was suitably, if temporarily, relieved by this judgment, but I have my doubts.
Firstly I have to presume that the landlord had pleaded the end of secure tenancy by way of s.81 Housing Act 1985 (the only and principal home condition). That ends the secure tenancy, regards of anything in the tenancy agreement. No tenancy agreement can trump the statutory provisions.
We aren’t given the precise wording of the clause in the tenancy agreement, but any provision in the tenancy agreement concerning notice that stated it was ‘as provided under the provisions of the HA 1985’ is surely strongly arguable as restricted to a tenancy under the Act. If so, it is not applicable to any tenancy outside of the Act, as was the non-secure tenancy that this Defendant had left.
While it may well be possible for a landlord to specify that a tenancy contains notice provisions above and beyond those specified in statute, if the notice provisions are expressly described as ‘as provided’ in statute, it is hard to see how that can be considered as extending the security over the statutory provision.
I would guess that this term was contained in the secure tenancy agreement, which had, I would imagine, ended by operation of statute. If so, surely the secure tenancy agreement no longer governed the tenancy at the time of the hearing and its terms were by-the-by. Can a term of a tenancy agreement survive the end of that agreement?
I would have thought the DDJ’s judgment thoroughly appealable, unless the Council just wants to take the line of least resistance and serve an NSP (but on what grounds..? Would they be restricted to those of the HA 1985?).
I don’t think the equation to repairing liability goes very far. S.11 Landlord and Tenant Act 1985 specifies the repairing liabilities that a landlord cannot avoid by terms of the tenancy agreement, but it in no way sets limits on extension of that liability. However, no-one can create a secure tenancy outside of the provisions of HA 1985, whatever extra rights might be added to that tenancy on top.
I may well have gone off on the wrong track here – it has been a long, intense, but successful day for me, but the adrenaline has now worn off, and with it most higher brain functions – but this judgment looks rather messy to me, and quite possibly unsustainable. If the tenant was represented, does the solicitor want to write it up? Perhaps there is more than I’ve grasped.
There is no doubt that a landlord can, by contract prevent himself from relying on statutory grounds for possession (Pollards Hill HA v Marsh [2001] EWCA Civ 199) but, as you say, that isn’t quite the case here.
In this case, presuming that the “tenant” has parted with possession then, by operation of law, the secure tenancy has come to and end and cannot be revived. The terms of the tenancy agreement were referable to the secure tenancy and, one assumes, must also be taken to have fallen away.
That being so, I can’t see why the NTQ won’t be accepted. Lets see what happens!