Housing Update: Periodic Tenancies granted before 2007 and the Deregulation Act 2015
Periodic Tenancies granted before 2007 and the Deregulation Act 2015 – JULIA WALCOTT v (1) RANDOLPH JONES (2) MARGARET JONES (2017)
This case serves to remind us of the often complex rules surrounding the requirement to protect deposits and the impact of failure to do so when serving Notices Requiring Possession (NRP) pursuant to s21 Housing Act 1988.
The facts were that the parties entered into an oral monthly assured shorthold tenancy of the property on 30 August 2007. An NRP was served on or about 21 June 2016 and the tenant contended that it was invalid because it did not comply with the requirements of s21A and did not provide the information required by s21B Housing Act 1988 which were introduced by the Deregulation Act 2015. Crucially, it did not fulfill the requirement to obtain a gas safety certificate, energy performance certificate and provide information about the rights and responsibilities of the parties.
The central argument in the appeal was what is meant by the word “granted” in section 41(1) of the Deregulation Act 2015? The Deregulation Act 2015 is clear that the requirements lacking here are not mandatory for tenancies granted before 1 October 2015. The tenant argued on appeal that the fact it was a periodic tenancy meant that it was granted after that date (ie each month afresh) and that the notice was invalid. The landlord argued that the grant took place once in 2007.
After a careful examination of the relevant authorities and texts on the issue and, at paragraph 29 of the judgment looks at the “practical reality” which he found to be “that at the time a tenant enters into possession pursuant to an agreement which has created or “granted” the tenancy it is impossible to be certain how long that possession will last save that it is certain the period agreed will be the minimum period of possession”. Applying this logic, HHJ John Hand QC found that (1) the tenant whose possession extends from one period to another without either having given notice or received notice, would be unlikely to think in terms of having been “granted” a series of leases and (2) that the answer to this appeal cannot depend entirely upon what the tenant might think, although, he said, it is never a good idea for legal analysis to move too far away from “practical reality”.
The Judge concludes that the key question to ask when looking at this matter of statutory interpretation is whether either a deemed re-letting or an extension means that a new tenancy has been “granted”. The Judge reached the decision that month on month re-grants were not what Parliament intended and that the tenancy was “granted” once in 2007 and that the requirements introduced by the Deregulation Act 2015 did not apply and that the NRP was therefore not invalidated by the failure to comply with those requirements.
If you would like any further advice on issues surrounding ending assured shorthold tenancies, please contact Jane Talbot in Chambers or any other member of the housing team.