Barrow & Anoe v Kazim & Ors, Court of Appeal - Civil Division, October 31, 2018, [2018] EWCA Civ 2414

Resolution Date:October 31, 2018
Issuing Organization:Civil Division
Actores:Barrow & Anoe v Kazim & Ors

Neutral Citation Number: [2018] EWCA Civ 2414

Case No: B5/2017/2928



Her Honour Judge Baucher

Claim No. C01EC627

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/10/2018






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Mr Ben Chataway (instructed by Osbornes Solicitors LLP) for the Appellants

Mr Asela Wijeyaratne (instructed by YVA Solicitors) for the Respondents

Hearing date: 17 October 2018

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Lord Justice Newey:

  1. ``Assured shorthold tenancies'' were introduced by the Housing Act 1988 (``the 1988 Act'') and are nowadays commonplace. Such a tenancy cannot be brought to an end by a landlord except by obtaining and executing an order for possession under section 7 or section 21 of the 1988 Act (see section 5(1)). Section 7 (which forms part of Chapter I of Part I) authorises (and in some instances requires) the Court to make a possession order on the various grounds set out in schedule 2 to the 1988 Act (which include, for example, the availability of suitable alternative accommodation, rent arrears and breach by the tenant of an obligation of the tenancy). Typically, however, a landlord will seek possession pursuant to section 21 rather than section 7. The former provision allows a landlord to recover possession as of right if, among other things, a notice has been served in accordance with section 21(1)(b). Section 21(1) is in these terms:

    ``Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied--

    (a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and

    (b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling-house.''

  2. The question in the present case is whether a notice that the respondents, who own the relevant premises, served on the appellants, who are assured shorthold tenants, satisfied the requirements of section 21(1)(b) of the 1988 Act. The respondents maintain that it did. The appellants dispute that on the basis that the respondents were not at the date of the notice ``the landlord'' within the meaning of section 21(1)(b).

  3. The proceedings concern a building at 134 Holloway Road in London which contains a number of flats. From 2012, predecessors in title of the respondents leased the building to Anthea Investments Limited (``the Agency'') on the footing, as was recorded in the agreements between them, that the Agency was allowed to sub-let the premises, which were ``to be used for sub-lettings as residential accommodation''. The Agency granted an assured shorthold tenancy of a flat within the building to each of the appellants. Both tenancy agreements provided for a fixed term of 28 weeks, but the appellants afterwards remained in occupation as periodic tenants in accordance with section 5(2) of the 1988 Act.

  4. In 2015, the respondents became the registered proprietors of 134 Holloway Road, and they thereafter took steps to obtain possession of the property. To that end, on 12 January 2016 they served a document headed ``Notice to quit'' on the Agency and the building's occupiers stating that possession would be required on 19 March 2016. The document was intended both to determine the Agency's mesne tenancy with effect from the specified date and, as regards the sub-tenants (including the appellants), to constitute a notice under section 21(1)(b) of the 1988 Act.

  5. It is common ground that the Agency's tenancy (which, since it did not satisfy the requirements of section 1 of the 1988 Act, was not itself an assured tenancy) was terminated with effect from 19 March 2016 and that the appellants were then tenants of the respondents. While the appellants' tenancies would have fallen with the Agency's at common law, section 18 of the 1988 Act provides for an assured tenancy lawfully granted by a mesne tenant (here, the Agency) to ``continue in existence as a tenancy held of the person whose interest would, apart from the continuance of the assured tenancy, entitle him to actual possession of the dwelling-house'' (here, the respondents) at the end of the mesne tenancy. Further, the notice that the...

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