Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

covenants, obligations and liabilities incident to estate; interests protected by an entry on the register; interests that override first registration;265 and

squatters’ title by limitation if the squatter is in occupation266 or if the first proprietor has notice.

A leaseholder may secure absolute title by showing a complete title both to the lease and all reversionary titles – including the freehold and all intermediate leaseholds. This is simple enough if the superior titles are registered, for the registrar can refer to them, and can then enter a notice of the lease against the landlord’s title.267 Leasehold absolute title can only be obtained against an unregistered freehold title by contracting to extend the statutory title268 or after voluntary deduction of the superior title. Buyers and lenders should insist upon a full title.

(2) Good leasehold

[25.45] Good leasehold title is granted where the leasehold title is produced to the registrar and so guaranteed, but the freehold title is not approved.269 Registration is without prejudice to “the enforcement of any estate, right, or interest affecting or in derogation of the title of the lessor to grant the lease”.270 This title was once common because of the statutory restrictions on securing access to superior unregistered titles,271 but these rules are now amended to allow a derivative tenant to see all the superior titles.272 Universal modern practice is to require production of superior titles so that absolute title can be obtained and the proportion of good leasehold titles is declining.

(3) Possessory titles

[25.46] Possessory title to leasehold land273 provides a guarantee limited to operate only from the date of first registration, and leaves open the possibility of enforcement of interests adverse to the title of the first proprietor and subsisting at the time of registration of that proprietor.274 Possessory title is given in 1% of freehold cases, for example a squatter’s title based on twelve years adverse possession, after loss of the title deeds,275 or where the paper title has flaws.276

265LRA 2002 sch 1; see above [20.37].

266Sch 1 para 2.

267DLRR 2003 r 33; see above [20.04].

268LPA 1925 s 44, as amended by LRA 2002 sch 11.

269LRA 2002 s 12(6). Old law: LRA 1925 s 8(ii); Strand Securities v. Caswell [1965] Ch 958; White v. Bijou Mansions [1937] Ch 612, [1938] Ch 351, CA.

270LRA 2002 s 12(6); Law Com 271 (2001), [9.29–9.35].

271LPA 1925 s 44; C Sweet (1912) 28 LQR 6, 7–8.

272As amended by LRA 2002 sch 11 para 2; Law Com 271 (2001), [12.9–12.13]. The new rules remain defective in that an assignee can only see the immediate lease and not the superior title: s 44(3); I am indebted to a presentation by Sue Bright at Reading for this point.

273This dates from 1903: Re King [1962] 1 WLR 634, 639, Buckley J.

274LRA 2002 s 10(6), based on possession or receipt of rents and profits where no other class of title is appropriate. The effect is stated in s 12(8).

275DLRR 2003 r 26.

276Spectrum Investment Co v. Holmes [1981] 1 WLR 221.

(4) Qualified title

[25.47] Title may also be qualified so as to be guaranteed subject to a particular qualification. The defect excluded from the guarantee may be one arising before a certain date, or where a trustee has sold to himself making the title voidable.277 Roughly one title in 100,000 has to be qualified.

6.Upgrading leasehold titles

[25.48] Upgrading278 to leasehold absolute occurs on the application of the proprietor, if the superior title to the freehold and any intervening leasehold is deduced,279 and the registrar can also act on his own initiative. As more and more freehold titles come to be registered, more leasehold titles will be able to migrate to absolute registration.

Possessory titles are gradually upgraded to superior forms of title on the application of the proprietor or a subsequent buyer.280 Upgrading occurs if title to the lease can be shown to the satisfaction of the registrar.281 Otherwise a proprietor may apply to upgrade to good leasehold after holding possession and being registered for at least twelve years.282

A qualified title can only be upgraded if the registrar is satisfied as to the title.283

7.Leasehold registers

(1) Contents

[25.49] The register sets out the bare bones of the relationship (length, date and parties) leaving those interested to obtain an authenticated copy of the lease.284

(2) Restrictions on alienation

[25.50] Leases frequently contain some restriction on transfer of the leasehold estate, which should appear by way of restriction on the register.285 Any infringing sale is excepted from the effect of registration.

(3) Cancellation of entries

[25.51] When a lease ends, it is necessary to cancel the individual register and any notice recording the lease against the landlord’s title.286

277LRA 2002 s 10(5); the effect is stated in s 12(7).

278S 62; Law Com 271 (2001), [9.16–9.22]. The effect is the same as a first registration: s 62(8).

279LRA 2002 s 62(2).

280Application is by a proprietor, a person entitled to be registered, a proprietor of charge, or other person interested: LRA 2002 s 62(7); this is wider than the old law: Law Com 271 (2001), [9.23–9.24].

281LRA 2002 s 62(3).

282S 62(5).

283S 62(3); upgrading is to good leasehold or leasehold absolute according to the title shown.

284DLRR 2003 r 6.

285DLRR 2003 r 93.

286See above [20.12].

8.A prescribed form for leases?

[25.52] It was proposed to prescribe a form for a lease created out of a registered title,287 but this has proved to be controversial and the initial draft at least has been withdrawn.288

H. LEASES NOTED AND OVERRIDING

1.Interchangeability of categories

[25.53] Unless a lease attracts compulsory first registration it is likely to be interchangeable between the category of protectible leases which can be protected by entry of a notice on the register and the overriding category. It is desirable to bring on to the register and note as many interests as possible, and when an entry is made the interest ceases to override.289 A notice cannot be entered in relation to a leasehold estate in land which is granted for a term of three years or less unless it is of those exceptional cases which require entry on the register; these very short leases are overriding only.

2.Protection by notice (old law)

[25.54] Some leases may be protected against the landlord’s title as minor interests, entry of a notice warning all later buyers of the existence of the lease.290 Protection by notice requires either the consent of the landlord or a court order, but a caution may be used for non-consensual entries.291 Protection as a minor interest is not allowed if the lease is substantively registered nor if it is an overriding interest, at least if the lease is obvious.292 Notices are left to protect: (1) certain pre-1987 leases: leases for 21 years or less at a fine; leases for 21 years or less without any rent; and any lease made before 1986293 with an absolute prohibition on assignment; (2) agreements for leases;294 and

(3) future leases.

3. Short leases overriding the register

(1) Grants after 2002 Act commencement

[25.55] A leasehold estate granted for a term not exceeding seven years can override the register. This appears to restrict overriding status to legal grants as under the 1925 scheme. Exceptional leases which cannot override are:

287LRA 2002 s 25; DLRR sch 1; LR draft Form L1; DLRR CD ch 1, [27].

288LR Press Notice (January 2003); S Highmore & K Fenn [2002] 41 EG 174.

289LRA 2002 s 29(2).

290LRA 1925 s 48(1).

291Or possibly a restriction: JE Adams [1994] Conv 200.

292LRR 1925 r 199.

293LRA 1986 s 3; Law Com 125 (1983).

294Clark v. Chief Land Registrar [1994] Ch 370, CA; Chancery v. Ketteringham (1995) 69 P & CR 426, Ch D; AKR Kiralfy (1952) 16 Conv (NS) 38; JE Adams [1994] Conv 265.

a term to take effect in possession more than three months after the grant;295 certain “public” type leases;296

a lease created out a registered title by disposition.297

(2) Grants under the 1925 scheme

[25.56] Transitional provisions298 will continue the overriding effect of pre-2002 Act commencement leases “granted for a term not exceeding twenty-one years”.299 The crucial word is “granted”.300 In City Permanent BS v. Miller301 it was held that an oral agreement to create a lease for three years and then from week to week (that is for a minimum term of three years and one week) was not a legal lease, and so was not a paragraph (k) overriding interest. Certainly a lease by deed is “granted”, and it seems to follow from the course of discussion in Miller that an informal short lease is also granted if it creates a legal tenancy. It now makes no difference whether the lease is at a rack rent, reserves a fine, or is purely gratuitous.302

Protection adheres without occupation of the land and indeed can continue even after physical destruction of the building affected.303

Until the 2002 Act commencement the crucial date for the existence of the lease was the registration of a transfer304 but overriding interests now override particular dealings so it is the date of the transfer that is critical.305

4.Tenants as occupiers overriding the register

[25.57] Occupation by a tenant is a means of protecting a lease on first registration,306 on a post-2002 Act transfer307 or on a pre-2002 Act transfer.308 In the past receipt of rents from a sub-tenant could protect the title of the head tenant, but this is now withdrawn for the future.309 Occupation may protect a tenant in occupation under a registrable but unregistered lease, a short term tenant who overrides anyway, or an equitable tenant in possession. Fortuitous protection is provided for a person with an option for a future lease who happens to be in occupation under some other right. Protection is lost if the lease is not disclosed after enquiry310 or if occupation is given up before a transaction with the land.

295Law Com 271 (2001), EN [618].

296See above [25.58].

297LRA 2002 sch 3 para 1; Law Com 271 (2001), EN [603–605].

298LRA 2002 sch 12 para 12; Law Com 271 (2001), [8.50–8.52]; LRA 2002 sch 3 para 12; Law Com 271 (2001), EN [809].

299LRA 1925 s 70(1)(k), as amended by LRA 1986 s 4(1).

300City Permanent BS v. Miller [1952] Ch 840, CA.

301[1952] Ch 840, CA.

302Amendments by LRA 1986 s 4.

303Prince v. Robinson (1999) 31 HLR 89, CA, obiter.

304LRA 1925 s 70(1); Pourdanay v. Barclays Bank [1997] Ch 321, Scott V-C; M Robinson (1998) 114 LQR 354.

305LRA 2002 s 29(1).

306Sch 1 para 2.

307Sch 3 para 2.

308LRA 1925 s 70(1)(g).

309See above [15.47].

310See above [15.53].

I.REGISTRATION OF CERTAIN “PUBLIC” LEASES

1. Grants involving public sector housing

[25.58] Registration is compulsory for:

a right to buy grant of a public sector dwelling;311

a grant of legal lease of the landlord’s interest in a public sector estate; and a transfer of such an interest.312

2.Public transport in London

[25.59] Leases connected with public transport in London (PPP leases) are not registrable313 and override the register.314

J.TERMINATION BY COMBINATION OF LEASE AND REVERSION

1.Lease to oneself

[25.60] It is now possible to convey land to oneself,315 but Rye v. Rye316 decides that one cannot grant an oral lease to oneself and the need for two parties able to contract applies just as much to a formal lease.

If an owner cannot let land to himself as tenant, the problem can easily be avoided by granting the lease to a nominee. The legality of this dodge was doubted in the Scottish case Clydesdale Bank v. Davidson,317 but the House of Lords has now made clear that a lease by a landlord to his nominee is valid. Lady Ingram, the appellant in Ingram v. Inland Revenue Commissioners,318 wanted to give her house to her children but to retain the right to live in the house in her old age. Three transactions took place on successive days. On the first, she conveyed the house to her solicitor; on the second the solicitor granted her a lease rent-free for 20 years, and on the third the freehold was conveyed to trustees for her family. The House decided that for taxation purposes the value of the property transferred to the family trustees was to be valued on the basis of the freehold estate subject to the lease. In other words, the House of Lords held that the lease granted by the solicitor (as nominee for Lady Ingram) to Lady Ingram was valid. Although the speeches concentrate on the taxation issue – now a dead duck since the inheritance tax loophole exploited by Lady Ingram has now been closed319 – it seems that the Lords affirmed Millett LJ’s dissent in the Court of Appeal

311S 4(1)(e), as under the old law.

312S 4(1)(b), reproducing the old law.

313S 90; Law Com 271 (2001), [8.11–8.13], EN [393–395].

314Greater London Authority Act 1999 s 219; LRA 1925 s 70(1)(k); LRA 2002 s 90.

315LPA 1925 ss 72, 82 (covenants).

316[1962] AC 496, HL.

317[1998] SC 51, HL.

318[2000] AC 293, HL.

319Finance Act 1986 s 102A, inserted by Finance Act 1999 s 104.

on the property issues.320 It is possible to vest a freehold estate in a nominee, so why not also a lease?

Two tenants (T1 and T2) can assign to one of their number (T1),321 and this is not a surrender.

2.Merger

[25.61] A lease may be terminated by a dealing which results in the leasehold estate and reversion passing into a single ownership, an event which sometimes causes the two estates to fuse. Merger describes the case in which both interests are transferred to one person,322 which under modern law depends upon intention.323 Surrender occurs when a tenant gives up his lease to his landlord.324 A deed and land registry application are required for a legal merger or surrender,325 but a contract operates in equity.326 The lease is ended prospectively, but liability continues for the past, for example under a rent review not settled at the date of the surrender.327

2.Surrender

[25.62] Lord Millett said in Barrett v. Morgan328 that:

“A surrender is simply an assurance by which a lesser estate is yielded up to the greater, and the term is usually applied to the giving up of a lease or tenancy before its expiration. If a tenant surrenders his tenancy to an immediate landlord, who accepts the surrender, the tenancy is absorbed by the landlord’s conversion and is extinguished by operation of law.”

Coke on Littleton329 wrote graphically of a case where the estate:

“may drowne by mutual agreement between them.”

Passage of the legal title is usually accompanied by the equitable title.330

Formality is required for a legal surrender, but a contract for a surrender ends the lease in equity.331

320Ingram v. IRC [1997] 4 All ER 395, CA.

321Burton v. Camden LBC [2000] 2 AC 399, HL.

322Southampton Community Health Services NHS Trust v. Crown Estate Commissioners [1997] EGCS 155, Ch D.

323LPA 1925 s 185; Ingle v. Vaughan Jenkins [1900] 2 Ch 368, 370, Farwell J; Westwood v. Heywood [1921] 2 Ch 130, 140, Astbury J. There are numerous cases.

324Leek & Moorlands BS v. Clark [1952] 2 QB 788; Featherstone v. Staples [1986] 2 All ER 461. It requires the consent of a lender secured on the landlord’s interest: LPA 1925 s 100.

325DLRR 2003 r 79, 87–88.

326Take Harvest v. Liu [1993] AC 552, PC (Hong Kong law like LPA 1925 s 40); Barakat v. Ealing LBC [1996] 36 RVR 138 (not letter spelling out proposed terms). Future agreements to surrender are frequently negated by security of tenure legislation.

327Torminster [1983] 1 WLR 676, 682H.

328Barrett v. Morgan [2000] 2 AC 264, HL; L Tee [2000] CLJ 251.

329Coke on Littleton, [337b].

330Allen v. Rochdale BC [2000] Ch 221, CA.

331By deed; a contract to surrender ends the lease in equity: Take Harvest v. Liu [1993] AC 552, PC. Agreements to surrender made in advance are invalidated under most security of tenure regimes.

4.Informal surrender

[25.63] Surrender is implied where landlord and tenant conduct themselves in a manner inconsistent with continuation of the lease. This is a long established332 form of estoppel,333 with many conflicting authorities.334 A tenant cannot end his lease by moving out,335 or handing back the keys without their being accepted by the landlord.336 The most common indication that a landlord has accepted a surrender is reletting, whether to a new tenant337 or to the existing tenant on new terms.338 Other mutual acts may be sufficient, for example advertising for a new tenant,339 taking possession at the tenant’s request340 or accepting the tenant’s return of the key.341

Surrender transfers the tenancy to the landlord subject to existing subtenancies.342

5.Preservation of derivative interests

[25.64] All derivative interests end if a head lease ends by forfeiture343 by effluxion, or by break instigated by the landlord. In Pennell v. Payne344 it was decided that if a periodic tenant serves notice to quit, thus ending the head tenancy, the effect is to bring to an end any sub-tenancy. However on surrender and merger derivative interests are preserved by statute.345 The next interest takes effect in reversion.346 Surrenders should generally be analysed as a transfer of the lease rather than as a termination.347

332Wrotesley v. Adams (1560) 1 Plowd 189, 75 ER 290.

333Lewis v. Jenkins R Kerman & Son [1971] Ch 477, 496, Russell LJ.

334P Sparkes NLT, 37–41, 298–301, 596–603.

335Preston BC v. Fairclough (1983) 8 HLR 70; Lyon v. Reed (1844) 13 M & W 285, 130 ER 118; Chamberlain v. Scalley (1994) 26 HLR 26, CA (possessions left).

336Proudreed v. Microgen Holdings [1996] 1 EGLR 89, CA; Bhogal v. Cheema [1998] 2 EGLR 50, Ch D (no duty to mitigate). See also Cannan v. Grimley (1850) 9 CB 634, 137 ER 1040; Oastler v. Henderson (1877) 2 QBD 575, CA.

337Sidebotham v. Holland [1895] 1 QB 378; ES Schwab & Co v. McCarthy (1975) 31 P & CR 196, Oliver J; Tower Hamlets LBC v. Ayinde (1994) 26 HLR 631, CA.

338Smirk v. Lyndale Developments [1975] Ch 317; Jaskel v. Sophie Nursery Products [1993] EGCS 42,

CA.

339Oastler v. Henderson (1877) 2 QBD 575.

340R v. Croydon LBC ex p Toth (1988) 20 HLR 576, CA; McDougall’s Catering Foods v. BSE Trading

[1997] 2 EGLR 65 (not if to preserve against squatters). Contrast: Hoggett v. Hoggett (1979) 39 P & CR 121 (no delivery of possession).

341Barakat v. Ealing LBC [1996] EGCS 67, Brooke J; Filering v. Taylor Cam [1996] EGCS 95, CA.

342LTA 1730 s 6; now LPA 1925 s 150; Ecclesiastical Commissioners for England v. Treemer [1893] 1 Ch 166, 172, Chitty J; Plummer & John v. David [1920] 1 KB 326; Basingstoke & Deane BC v. Paice [1995] 2 EGLR 9, CA; N Hopkins [1996] Conv 284.

343Great Western Rly Co v. Smith (1876) 2 Ch D 235, CA, affirmed (1877) 3 App Cas 165, HL.

344P Sparkes NLT, 596–603; Pennell v. Payne [1995] QB 192, CA; Barrett v. Morgan [2000] 2 AC 264,

HL.

345LPA 1925 s 150; Ecclesiastical Commissioners for England v. Treemer [1893] 1 Ch 166, 172, Chitty J.

346LPA 1925 s 139; London RT v. Brandt [1997] 2 BCLC 558, CA.

347N Hopkins [1996] Conv 284.

K. TERMINATION BY BREAK NOTICE

[25.65] Many leases provide that they may be ended by notice, particularly by the tenant.348 A tenant may choose to break a lease if the initial rent was uneconomic or after receiving an unwelcome rent review.349

A break notice must be an unambiguous exercise of the clause.350 Careful compliance is required with the terms of the lease about when to serve notice and how long it should be. Most conditions are mandatory.351 A (masculine) lease might, for example, require a notice to be served on blue paper, in which case it would be no good serving it on (feminine) pink paper.352 However, a more relaxed view stated in

Carradine Properties v. Aslam353 is now accepted:

“Is the notice quite clear to a reasonable tenant reading it? Is it plain that he cannot be misled by it?”

An older rule requiring strict literal compliance with the lease354 was disapproved by a bare majority of the House of Lords355 in Mannai Investment Co v. Eagle Star Life Assurance Co.356 A lease of offices in Jermyn Street allowed termination by notice expiring on the third anniversary of the term commencement date. This was actually January 13th 1995, but the tenant’s letter purported to terminate it one day early on January 12th.357 The House of Lords held that this minor misdescription did not mar the validity of the notice, since the tenant’s decision to terminate had been conveyed with sufficient clarity. This convenient decision has rapidly attracted a substantial encrustation of case-law.358 Plainly erroneous dates can be ignored. An impossible date (1973 in a notice in 1974) can be read as if it said the correct date (1975).359 In Micrografix v. Woking 8360 the tenant’s letter and the actual notice stated two different, but equally erroneous, dates, but the notice was held to refer to the correct date

348Landlords make less use of them since most commercial tenants have security of tenure.

349Nocton v. Walter Hall Group [1997] EGCS 97 (break if no longer viable to quarry; it was, so no break).

350Aylward v. Fawaz (1997) 29 HLR 408, CA , distinguishing Hankey v. Clavering [1942] 2 KB 326.

351An offer can specify the method of acceptance, but some terms are merely directory: Yates Building Co v. RJ Pulleyn & Sons (York) [1976] 1 EGLR 157, CA.

352Mannai Investment Co v. Eagle Star Life Assurance Co [1997] AC 749, 776B, Lord Hoffmann.

353[1976] 1 WLR 442, 444, Goulding J; approved in Germax Securities v. Spiegel (1978) 37 P & CR 204, 206, CA; Morrow v. Nadeem [1987] 1 WLR 237, CA.

354Hankey v. Clavering [1942] 2 KB 326, CA.

355Lords Steyn, Hoffmann and Clyde, Lords Goff and Jauncey dissenting.

356[1997] AC 749, HL; M Biles “Hunting for Allegories on the Banks of the Nile” ch 14 in Jackson and Wilde; PF Smith [1998] Conv 326; L Tee [1998] CLJ 29; M Robinson (1999) 115 LQR 389; A Lovitt & J Martin [2000] 42 EG 170; JE Adams [2002] Conv 212; HW Wilkinson [2002] NLJ 645; J Gaunt & N Cheffings [2002] NLJ 424, 460.

357Contrast where the notice is to expire at midnight, so the notice could state either the day before or the one after: Sidebotham v. Holland [1895] 1 QB 378, CA; Crate v. Miller [1947] KB 946, CA.

358Garston v. Scottish Widows Fund & Life Assurance Society [1998] 1 WLR 1583, CA; Havant International Holdings v. Lionsgate (H) Investment [1999] 47 LSG 34, Hart J; Lemmerbell v. Britannia IAS

[1998] 3 EGLR 67, CA.

359Carradine [1976] 1 WLR 442, Goulding J.

360[1995] 2 EGLR 32, Jacob J; approved in Mannai.

which would be obvious to the landlord reading the lease. There are also a large number of cases on defective shorthold notices.361

L. RESIDENTIAL RENTING

1.The housing market

[25.66] Of the 21 million dwellings in England and Wales, roughly 2.7 million are rented from a council, 1.2 million from a social landlord (that is a housing association) and 2.0 million are rented privately.362 It is time to rationalise the forms of security of tenure363 and indeed the Law Commission is working towards a division into two main forms – long term tenancies with full residential security and short term tenancies without.364 In the meantime there is a mess which must be explored elsewhere.

2.Long term residential security

[25.67] Full residential security provides protection against repossession of the property by the landlord. The landlord must serve notice to quit, take court proceedings and prove a ground for possession. A tenant who pays the rent punctually and otherwise behaves himself is usually entitled to stay indefinitely.365

Two schemes apply in the private sector, according to the date on which the tenancy was first granted. The Rent Act 1977 applies to private sector residential tenancies granted before early 1989. It confers “lifelong” security of tenure and the right to register a fair rent below the market rent. Many Rent Act tenants are now elderly. On the death of a tenant, the tenancy may pass by succession to a surviving spouse or other resident family member. Fully assured tenancies were granted in the private sector from early 1989 onwards.366 The quality of the security of tenure is largely unaffected by this change,367 but a market rent regime was adopted. At first, rents under the new system were dramatically higher, but fair rents have gradually increased so that the gap has narrowed.

Most tenancies with full security are granted by social or public landlords. Housing associations generally grant fully assured tenancies in the private sector. Rents should be “affordable”. Public sector landlords are mainly local authorities, and they grant secure tenancies368 to tenants selected according to strict allocation rules.369 This is the largest group of tenants with full residential security. Public sector tenants have

361P Sparkes NLT, 47–48; Ravenseft Properties v. Hall [2001] EWCA Civ 2034, [2002] 1 EGLR 9.

362Annual Housing Statistics (ODPM, 2000), [8.2].

363P Sparkes “Towards a Structure for the Law of Landlord and Tenant” ch 13 in E Cooke Modern Studies in Property Law 1 – Property 2000 (Hart, 2001).

364Reform of Housing Law: A Scoping Paper (Law Com, March 2001).

365P Sparkes NLT ch 5.

366HA 1988, operating from January 15th 1989 by s 141(3).

367Succession rights are much reduced.

368HA 1985; P Sparkes NLT, 7–10; for introductory tenancies see below [25.71].

369P Sparkes NLT ch 4; Homelessness Act 2002.

the right to buy their homes at a discount,370 and there are some equivalent rights of acquisition for those in the social sector.

Full security is removed from shorthold tenants, those with limited security, or those against whom a ground for possession is established, and from all licensees.

3.Shortholds

[25.68] Shorthold tenancies now dominate the private sector residential letting market. The tenant has the assurance of a short fixed term of occupation, but after that short “hold” the landlord has a guarantee that he will be able to recover possession.

A section 19A shorthold is a tenancy originally created after the commencement of the Housing Act 1996.371 The guarantee remains for a minimum of six months, but it is no longer necessary to make a contractual grant for any fixed period – a shorthold might be for an initial fixed term, or a holding over, or an open-ended periodic tenancy.372 The grant should be in writing so that the landlord can take advantage of the accelerated repossession procedures.373 Termination by the landlord is generally proscribed during the initial six month period. Almost all formalities have now been stripped away, and in particular a shorthold notice is no longer required, so a private sector tenancy is a shorthold unless steps are taken to confer full security of tenure.

Assured shorthold tenancies created between early 1989374 and early 1997 required more formality. There had to be an initial grant for a term certain of not less than six months,375 and it was necessary to serve on the proposed tenant in advance a shorthold notice warning that he would not enjoy full security of tenure.376 Major errors invalidate the notice377 but the reasonable recipient principle378 applies to validate notices containing minor defects where the meaning would be obvious to a reasonable recipient.379

4.Termination

[25.69] An assured shorthold is brought to an end by a notice giving two months warning380 followed by a court application for a mandatory possession order under the accelerated repossession procedure.381

370HA 1985 part V; P Sparkes NLT ch 18.

371HA 1988 s 19A inserted by HA 1996 s 96; for grants on or after February 28th 1997: SI 1997/225.

372The six month period runs once and is not triggered again by a contractual renewal of the tenancy.

373CPR 55.11ff.

374HA 1988 s 20, operating from January 15th 1989.

375HA 1988 s 55; Bedding v. McCarthy (1995) 27 HLR 103, CA; Marath v. MacGillivray (1996) 28 HLR 484, CA; Mundy v. Hook (1998) 30 HLR 551, CA; Goodman v. Evely [2001] EWCA Civ 104, [2002] HLR 53.

376HA 1988 s 19A; HA 1996 s 96; Bedding v. McCarthy (1995) 27 HLR 103, CA; Demetriou v. Panayi [1998] CLYB 3597; Yenula Properties v. Naidu [2002] EWCA Civ 719, [2002] 42 EG 162.

377Panayi v. Roberts (1993) 25 HLR 421, CA; Mundy v. Hook (1998) 30 HLR 551, CA; Andrews v. Brewer (1998) 30 HLR 203, CA; Mustafa v. Ruddock (1998) 30 HLR 495, CA; Manel v. Memon (2001) 33 HLR 24, CA.

378Mannai Investments [1997] AC 749, HL; see above [25.65].

379Panayi v. Roberts (1993) 25 HLR 421, 425, Mann LJ; York v. Casey [1998] 2 EGLR 25, CA; Clickex

v.McCann [1999] 2 EGLR 63, CA; Ravenseft Properties v. Hall [2001] EWCA Civ 2034, [2002] 11 EG 156.

380HA 1988 s 21, as amended in 1996; P Sparkes NLT, 54–56.

381CPR 55.11–55.19; PD 55.18.