Too late to waive

Yildiz v London Borough of Hackney (2019) EWCA Civ 1331

Where a tenant has succeeded to a secure tenancy on the death of the former tenant, and the landlord seeks possession on the basis that the property is under occupied, there are time limits on when and how this can be done. This was the Court of Appeal judgment on an appeal from an appeal to a circuit judge of a first instance possession order. At issue was the effect of an application to dispense with the requirement for a notice seeking possession (via s.83(1)(b) Housing Act 1985) on the statutory time limits.

Mr Y had succeeded to his father’s tenancy of a four bedroom on his father’s death on 4 September 2014. On 28 January 2015, Hackney – the landlord – told Mr Y he was under-occupying and he would be required to move. A one bed property was offered, possibly more than one, but Mr Y remained. A Notice Seeking Possession was served on 23 June 2015, relying on ground 15A Housing Act 1988, stating possession proceedings would be brought after 20 July 2015. At the end, the notice said:

“After this date (i.e. 20 July 2015), court proceedings may be begun at once or at any time during the following twelve months. Once the twelve months are up this Notice will lapse and a new Notice must be served before possession can be sought.”

Hackney did not bring possession proceedings until 8 August 2016, more than 12 months after 20 July 2015. At first instance, Hackney applied to dispense with the requirement for notice. The Deputy District Judge granted the dispensation. Mr Y appealed that decision, and the deputy Circuit Judge dismissed that appeal. Mr Y appealed to the Court of Appeal.

Ground 15A ( as amended) provides:

“The dwelling-house is in England, the accommodation afforded by it is more extensive than is reasonably required by the tenant and—
(a) the tenancy vested in the tenant by virtue of section 89 (succession to periodic tenancy) or 90 (devolution of term certain) in a case where the tenant was not the previous tenant’s spouse or civil partner, and
(b) notice of the proceedings for possession was served under section 83 (or, where no such notice was served, the proceedings for possession were begun) more than six months but less than twelve months after the relevant date.
For this purpose ‘the relevant date’ is—
(a) the date of the previous tenant’s death, or
(b) if the court so directs, the date on which, in the opinion of the court, the landlord (or, in the case of joint landlords, any one of them) became aware of the previous tenant’s death.

And section 83 provides, so far as relevant:

(4) Where the tenancy is a periodic tenancy and Ground 2 in Schedule 2 is not specified in the notice, the notice—
(a) shall also specify the date after which proceedings for the possession of the dwelling-house may be begun, and
(b) ceases to be in force twelve months after the date so specified.

So, the effect would appear to be, so far as ground 15A is concerned, that either the landlord must serve an NSP after 6 months but before 12 months after the ‘relevant date’, and then have 12 months to bring possession proceedings based upon that notice, or the landlord must bring possession proceedings within the ‘after six months but before 12 months of relevant date’ window without serving notice. (Indeed, one rather wonders at the first instance and first appeal decisions….)

At the Court of Appeal, Hackney argued that there was a difference between a case where no NSP had been served, where the proceedings had to be issued within the six month window, and a situation like the present one where an NSP had been served but had lapsed. The Ground 15A requirement for notice within the six month window had been met. So the issue was section 83 and the 12 month validity of the notice, and it was open to the court to dispense with notice under s.83 if satisfied it was just and equitable to do so. The tenant had had notice of the proceedings.

The Court of Appeal was not impressed.

Where a landlord brings proceedings for possession relying on ground 15A, notice of those proceedings must, as I see it, have been served under section 83 less than 12 months after the “relevant date”. Section 83 provides, however, for a notice to cease to be in force 12 months after the date specified in it. The better view, I think, is that that means that a notice cannot constitute notice of proceedings begun more than 12 months later than the specified date. In other words, it is not good enough that the landlord at some stage, however long ago, served a notice which, pursuant to both its own terms and those of section 83, is now spent. A notice must still be current if a landlord is to issue possession proceedings on the strength of it. In the absence of a relevant notice (because either none was ever served or any notice that was served had expired), a claim for possession based on ground 15A will be possible only if the proceedings were begun less than 12 months after the “relevant date”.

This interpretation of ground 15A accords with the fact that the time provisions in ground 16 (and now ground 15A) are there “to ensure that the relative is not disturbed … so much later [than the death] that he is settled into the property as his own long-term home” (to quote from Laws LJ in the Newport case). It avoids, too, any question of a landlord being able to invoke ground 15A on the basis that he had served a lapsed notice within 12 months of the “relevant date” and a second one complying with section 83 later.

Appeal allowed.

Comment

As well as the finding on the ground 15A time limits, which is transparently correct, there is a more general point about section 83 – a lapsed notice should not be, in principle, avoided by issuing proceedings and seeking dispensation from notice under s.83(1)(b). The tenant is entitled to rely on the 12 month limitation on notice, and the landlord having made an administrative snafu can’t realistically amount to a ‘just and equitable’ reason to waive notice.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession, secure-tenancy, Succession and tagged , .

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