Introductory tenancies: notice requirements

Friday 31 March 2017

London Borough of Islington v Dyer [2017] EWCA Civ 150, 22 March 2017.

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London Borough of Islington v Dyer [2017] EWCA Civ 150, 22 March 2017

In June 2013, Mr Dyer, the Respondent, was granted an introductory tenancy by the London Borough of Islington, the Appellant.

The purpose of such a tenancy is to provide a trial period in order to assess the tenant’s suitability to become a secure tenant. During that trial period, subject to certain procedural requirements, a local authority landlord can obtain a possession order relatively easily. The relevant procedural requirement in this instance was the requirement under s128 Housing Act 1996 to serve a notice of the intention to seek possession, containing certain specified information:

128 Notice of proceedings for possession.

(1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.

(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.

(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.

(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun. The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.

(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.

(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.

(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.

In November 2013, Mr Dyer was served with a document describing itself as a notice indicating that action was to be taken owing to (a) rent arrears and (b) an allegation that he had assaulted a female visitor in the lobby of the block of flats where he lived. Following a review, which Mr Dyer did not attend as he was in custody, possession proceedings were issued. Mr Dyer sought to defend the claim arguing that the s128 notice was invalid as it did not contain the requisite information relating to the availability of advice from a Citizens’ Advice Bureau etc.

At first instance the District Judge hearing the claim granted a possession order on the footing that the relevant information was contained in a leaflet referred to in, and provided with, the document headed ‘notice’ given to Mr Dyer and that taken together these constituted the notice for the purposes of s128. A Circuit Judge allowed Mr Dyer’s appeal. The requirements of s128(7) were mandatory and had not been complied with since the relevant information was not contained within the disputed notice document.

The Court of Appeal allowed Islington’s appeal. The provisions of s.128(7) are mandatory. But there is no prescribed form for a notice under s128. In the absence of which the starting point is whether or not the the document or documents relied on can reasonably be described as a notice for the purposes of that section. This is a question of whether, viewed objectively, the relevant documents perform the function of a s128(1) notice. This question is to be answered with reference to how a ‘reasonable tenant’ would understand the documents. In answering this question, it is not appropriate to adopt an overly semantic approach focusing on the nomenclature of the various documents. In respect of the documents given to Mr Dyer, a reasonable tenant would have understood that he needed to read the ‘notice’ together with the accompanying leaflet. As such the documents, taken together, fulfilled their function and the requirements of s128 had been met.

Tim Baldwin and Justine Compton acted for Mr Dyer.

Click here for the judgment.

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