Barrow and Amey v Kazim, Kazim and Mustafa  EWCA Civ 2414, 17 October 2018
The Appellants were sub-tenants of flats within a building located at 134 Holloway Road, London. They occupied the flats under assured shorthold tenancies which had been granted to them by a company called Anthea Investments Limited. Anthea, in turn, held 134 Holloway Road under a lease which had been granted to it by the Respondents’ predecessors in title. Under the lease Anthea was allowed to sublet the flats for use as residential accommodation.
In 2015, the Respondents acquired the freehold to 134 Holloway Road and began to take steps to take possession of the building. They started by serving a document, describing itself as a notice to quit, on Anthea and on the Appellants, on 12 January 2016. The document was intended to serve the dual purpose of determining Anthea’s mesne tenancy and, with regard to the Appellants, constituting a notice under s21(1)(b) Housing Act 1988. The notice stated that possession would be required on 19 March 2016.
The Respondents then brought possession proceedings against the Appellants. It was accepted by the parties that the notice had been effective to determine the mesne tenancy between Anthea and the Respondents and that from 19 March 2016 the Appellants had become the tenants of the Respondents, pursuant to s18 Housing Act 1988. The issue was whether or not the s21 notice was effective, in circumstance where it had been served before Anthea’s tenancy had come to an end.
The matter came before a District Judge who made a possession order, holding that a landlord of a ‘superior tenant’ was ‘entitled to serve a notice to quit on the inferior tenant at the same time’. An appeal against this decision was dismissed by a Circuit Judge who took the view that it was not essential for the purposes of s21(1) Housing Act 1988 that the person seeking possession should be the landlord at the date of the s21 notice. Only that they should be so at the date on which possession is sought.
The Court of Appeal allowed a second appeal. To be effective, a notice under s21 Housing Act 1988 must come from whoever is the ‘landlord’ at the date that the notice is given. Where – as in this case – a mesne tenancy exists, the fact that it will come to an end by expiry of the s21 notice does not mean that the head landlord, should be regarded as the ‘landlord’ of the sub-tenant at the date the notice was given. In this case, the only such ‘landlord’ at the date of the notice, was Anthea. The extended definition of landlord contained in s45 Housing Act 1988 did not affect this position. Applying these principles, the Respondent was not the landlord of the Appellants at the time the notice was given, and the notice did not, therefore, satisfy the requirements of s21(1)(b).
Click here for the judgment: Barrow v Kazim  EWCA Civ 2414