Case No: B5/2009/0725

Neutral Citation Number: [2009] EWCA Civ 763
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRADFORD COUNTY COURT
(HIS HONOUR JUDGE HAWKESWORTH QC)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 17th June 2009

Before:

LORD JUSTICE AIKENS
and
LORD JUSTICE PATTEN
- - - - - - - - - - - - - - - - - - - - -

Between:

	BRADFORD COMMUNITY HOUSING LTD	Respondent	
	- and -		
	WAJID HUSSAIN	Appellant	
	- and -		
	Shabana kauser	Part 20 Defendant	
- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr I Pennock (instructed by Stachiw Bashir Green) appeared on behalf of the Appellant.
Mr C Dodd (instructed by Bradford Community Housing Legal Section) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Patten:

1.	This appeal concerns a weekly tenancy of a freehold property 2 Camerton Green, Bradford (“the Property”).  The tenancy was granted to the appellant, Mr Hussain, and to the Part 20 defendant, Miss Shabana Kauser, as joint tenants by an agreement in writing dated 14 June 2001.  The freehold owner at the time of the grant was Bradford Metropolitan District Council, which transferred the freehold reversion to the respondent, Bradford Community Housing Limited, on 24 February 2003.

2.	The tenancy was an assured weekly tenancy pursuant to Section 1 of the Housing Act 1988.  Under the terms of the agreement of 14 June the tenancy commenced on 18 June 2001 at a weekly rent payable weekly in advance for 48 weeks of each year.  Rent was not payable for the holiday periods of Christmas, New Year, Easter and the August Bank Holiday.  Clause 2.2 of the agreement provided that the tenant should “give the Council not less than 28 days’ written notice expiring on any Friday should he/she wish to terminate the tenancy”.

3.	The relationship between Mr Hussain and Miss Kauser proved difficult and in 2003 it appears that Miss Kauser made allegations of domestic violence against Mr Hussain, which he denies, and took steps to terminate their tenancy.  A new lease of the premises was prepared granting her a tenancy in her sole name, but it was accepted by the respondent in the present proceedings that they could not establish that there had been an effective notice to quit and that the original joint tenancy therefore continued.

4.	The parties subsequently became reconciled but in November 2006 their relationship broke down again and Miss Kauser sought advice from the respondent’s homelessness advice team.  They prepared for her and she served on the respondent a new termination notice dated 24 January 2007 giving notice to quit the property:

“With effect from Sunday 25/02/2007 or the day on which a complete period of your tenancy expires next after the end of four weeks from the date of this notice.”

5.	Miss Kauser and her children were then re‑housed in a different property and possession proceedings were commenced in the Bradford County Court against Mr Hussain.  In the particulars of claim and the evidence in support, reliance was placed on the 24 January 2007 notice to quit which it was said terminated the 2001 tenancy with effect from Sunday 25 February 2007.  It is common ground that the termination of an assured tenancy by the tenant destroys any statutory protection under the Housing Act 1988 – see section 5(3) of the Act.

6.	By way of defence Mr Hussain alleged that the purported termination of the 2001 tenancy was a sham designed to circumvent his statutory and contractual rights and in the alternative that it was effective only to terminate what was described as the sham 2003 tenancy agreement, which as I mentioned earlier would have granted Miss Kauser a tenancy of the property in her sole name.  The point was also taken that to be effective the 24 January notice had to be given by both Miss Kauser and Mr Hussain, and not by Miss Kauser alone.

7.	At the first hearing before the district judge on 21 April 2008 the point was raised for the first time that an order for possession against Mr Hussain would be incompatible with his rights to respect for his home under Article 8(1) of the Convention.  At the renewed hearing the district judge rejected all of Mr Hussain’s lines of defence including that based on Article 8 and made an order for possession of the property.  He gave Mr Hussain permission to appeal and stayed his order. 

8.	Mr Hussain duly appealed and the appeal was heard by HHJ Hawkesworth QC on 14 January 2009.  In front of him the sham arguments were repeated but the Article 8 defence formed the central plank of Mr Hussain’s appeal.  In addition, Mr Pennock, on behalf of Mr Hussain, raised a new point about the effect of the 24 January notice to quit.  He accepted, as the district judge had found on the evidence, that the 2001 tenancy agreement created a weekly periodic tenancy ending on a Friday.  Despite the plea in the defence and the respondent’s evidence that the notice to quit expired on Sunday 25 February, the district judge had held that the 24 January notice as drawn was effective in terms to bring the tenancy to an end on Friday 23 February because of the inclusion in it of the catch-all reference to the alternative termination date of “the day on which a complete period of the tenancy expires next after the end of four weeks from the date of this notice”.

9.	Mr Pennock did not accept this but he contended that the notice was in any event varied by an agreement between the respondent and Miss Kauser that she should be allowed to hold over after the expiration of the notice, so that the tenancy terminated not at the end of the four week period on the Friday, as required by clause 2.2 of the tenancy agreement, but at some intermediate point in the week which did not coincide with the last day of a period of tenancy.  The termination of the tenancy in these circumstances required, he submitted, the consent of both joint tenants.

10.	HHJ Hawkesworth rejected all of Mr Hussain’s grounds of appeal and permission was sought for a second appeal to this court.  Sullivan LJ, with, as he put it, some hesitation, granted permission for a second appeal limited to ground 2 in the notice, which is the point about the validity and effect of the notice to quit.  Before returning to the factual basis for this ground of appeal it is useful to set out some basic principles.  

(1)	At common law a weekly periodic tenancy, like any other periodic tenancy, will continue unless terminated by a notice equal in length at least to the period of the tenancy and expiring at the end of the last day of that period.  The tenancy agreement may, however, stipulate a longer period of notice and in this case clause 2.2 of the 2001 agreement required the service of at least 28 days’ notice expiring on a Friday;

(2)	In the case of a periodic joint tenancy the tenancy will be terminated by an appropriate notice of the necessary length served by only one of the joint tenants: see Hammersmith and Fulham LBC v Monk [1992] 1 AC 478.  But a joint tenancy cannot be terminated by the operation of a break clause or by a surrender of the term unless all of the joint tenants consent to and are parties to the termination: see Hammersmith and Fulham LBC v Monk per Lord Bridge at page 490G-H and Hounslow LBC v Pilling [1993] 2 LFLR 49; and 

(3)	If a tenant gives short notice terminating a lease the landlord may accept it and so bring the tenancy to an end.  But the agreement operates technically as a surrender which, in the present case, would therefore require the consent of Mr Hussain to be effective.

11.	Before us Mr Pennock has contended that the notice to quit was ambiguous because it gives two alternative termination dates.  It should, he said, be construed against the respondent as giving notice terminating the tenancy on Sunday 25 February, which is what the respondent has pleaded.  This point is not, strictly speaking, included in the ground of appeal for which permission has been given but I will deal with it.  The construction and effect of the notice is a matter of law which I do not intend to decide on the pleadings.  It is true that the notice gives two possible termination dates, but only one complies with the requirements of clause 2.2 of the tenancy agreement and that date, which is Friday February 23, is the first in time.  In my judgment, there is no basis for construing the notice so as to exclude the operation of the catch-all provision.  It was obviously inserted to ensure that the notice expired at the end of a contractual period of the tenancy if that was not Sunday 25 February and it would have been read by the respondent as intending to terminate the tenancy in accordance with clause 2.2 of the tenancy agreement: see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749.   For these reasons, in my judgment, the notice to quit took effect at the end of Friday 23 February, which is what both the district judge and HHJ Hawkesworth decided.

12.	As part of his alternative submissions Mr Pennock says that the alleged variation, as he put it, of the 24 January notice to quit is based on two particular matters.  The first is that the respondent’s computer records show that rent was demanded and paid in advance up to Sunday 25 February.  The second matter is a letter from the appellant to Miss Kauser dated 9 January 2007, which was written at the time when she was seeking advice about her position in relation to the service of a notice to quit.  The form of letter that was in evidence and which HHJ Hawkesworth referred to in his judgment read as follows:

		“A termination form was produced for you to sign, and my colleague Caroline agreed to deliver it to you at your new address for your signature.  Today you refused to sign the form as you had not received an offer of alternative accommodation.  I advised you that BCHT require four full weeks notice of termination.  If you should receive an offer of accommodation and then tender your notice of termination, you would be required to give the full four weeks notice.  As you would not be entitled to Housing Benefit at two properties, you would need to pay your own rent on one of these properties.  If you were not to receive an offer of accommodation before your termination date, BCHT could hold over the tenancy for you for a limited period, charging the equivalent of a weeks rent for every week until you were able to hand over the keys for 2 Camerton Green.  Furthermore I advised you that I had spoken to Housing Benefits yesterday and they have stopped your Housing Benefit with effect from 8 January because you have moved out of 2 Camerton Green.”  

13.	We have now been shown what appears to be a signed copy of the letter that was sent on 9 January.  It is in the same terms as the letter I have just quoted except for the reference to the respondent holding over the tenancy.  Instead it says in the material passage:

		“I can assure you that BCHT would take no action to obtain possession of the tenancy for you for a limited period, charging the equivalent of a weeks rent for every week until you were able to hand over the keys for 2 Camerton Green.”

14.	Mr Pennock says that there is no material difference between the two letters and I am content for the purposes of this appeal to proceed on that basis.  He submits that HHJ Hawkesworth failed to direct himself properly upon the consequences of the respondent allowing a joint tenant to hold over.  He says that the effect of allowing Miss Kauser to hold over would have been that the tenancy ended either on Sunday 25 February or at some point during the period of the tenancy and could therefore only have been terminated with Mr Hussain’s consent.

15.	This argument depends upon one accepting that the effect of the letter or the payment and acceptance of rent up to 25 February was to treat the notice to quit as terminating on a day other than a Friday after the expiry of 28 days from the service of the notice.  Looked at simply as a question of fact, I find this difficult to accept.  Because this point was not raised at the trial before the district judge there is no evidence as to the arrangements made for the payment of rent.  It appears that a week’s rent was demanded on 19 February 2007 and paid up to 25 February.  Clearly the whole or a significant part of it would have been paid direct by way of housing benefit.  The payment of rent in advance was, as mentioned earlier, a term of the tenancy agreement and in this case appears to have been a routine matter unrelated to the service and terms of the notice to quit.  The letter of 9 January seems to me to do no more than to indicate what the respondent would be prepared to do in the event that alternative accommodation could not be provided by the expiration of the notice to quit.  There is no reference to varying the notice to quit and in fact the letter in terms contemplates that the usual four week notice to quit required by clause 2.2 would be served.  It would only be in the event that alternative accommodation could not be provided during that period that the possibility of the respondent either “holding over” the tenancy for Miss Kauser or, to use the phraseology of the other version of the letter, there being no action to obtain possession of the tenancy would arise.  For these reasons, I do not accept that there is any proper factual basis for the unpleaded allegation that the respondent and Miss Kauser agreed to vary the notice to quit.  Nor is it clear from the material relied upon why it is said that the notice as varied would not have terminated on a Friday.  

16.	But in my judgment the argument is also wrong in principle.  Permission for this appeal has been given on the basis that it raised an important point of principle as to whether the standard form notice to quit does or does not require the consent of Mr Hussain in order to be effective.  Mr Pennock has presented it in terms of authority as turning on the distinction between the decision of this court in Hammersmith and Fulham LBC v Monk (a case where an appropriate notice to quit was served, terminating the tenancy at the end of a contractual period) and Hounslow LBC v Pilling (the case where a single joint tenant attempted to operate a break clause).  That distinction is only relevant if one treats the 9 January letter as having in some way altered the termination date of the notice to quit served subsequently on 24 January.  I have already explained why this is not possible.  Nor can the payment of rent for a period after the expiration of the notice to quit affect the validity of the notice.

17.	The payment of rent, even if made after and with knowledge of the service of the notice to quit, does not alter the effect of the notice.  As Lord Goddard CJ explained in Clarke v Grant [1950] 1 KB 104 at page 105:

		“If a notice to quit has been given in respect of a periodic tenancy such as a yearly tenancy, the result is to bring the tenancy to an end just as effectively as if there had been a term which had expired.  Therefore, when a landlord has brought a tenancy to an end by means of a notice to quit, a payment of rent after that date will only operate in favour of the tenant if it can be shown that the parties intended that there should be a new tenancy.  A new tenancy must be created.  That has been the law ever since it was laid down by the Court of King’s Bench, presided over by Lord Mansfield in Doe d. Cheny v Batten (1775) 1 Cowp 243.  I need not read the judgments in extenso but Lord Mansfield said (2): “the question therefore is, quo animo the rent was received, and what the real intention of both parties was.”

18.	Even if one can treat the letter of 9 January 2007 or the payment of rent as amounting to an agreement as opposed to an indication that the respondent would, if necessary, be prepared to allow Miss Kauser to hold over after the expiration of the notice to quit, the application of the quo animo test is unlikely to produce the result for which Mr Hussain contends.  The joint tenancy terminated on 23 February 2007 in accordance with the notice to quit as served.  The most that could arguably be imputed to the respondent, based on the evidence presented to the judge, was an intention to grant a new tenancy of the property to Miss Kauser alone.  An intention to renew the joint tenancy would be contrary to all of the evidence.  The argument on this ground of appeal does not therefore lead to the preservation of the original joint tenancy or to the grant of a new one.  

19.	I would therefore dismiss this appeal.

Lord Justice Aikens: 

20.	I agree that this appeal must be dismissed for the reasons that my Lord has given.

Order: Appeal dismissed