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Ash
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I am trying to locate a summary of the decision in "Bedding

Customer Question

I am trying to locate a summary of the decision in "Bedding v McCarthy [1995 ], but cannot locate where it is reported. It is a landlord and tenant matter, and presume it is an English case. It concerns the validity of a s.20 Notice under The Housing Act,1988-Notice of Assured Shorthold Tenancy - now obsolete of course. The notice was served on the morning of the day when the A.S.T. was signed [in the afternoon] and which was to commence immediately.
What would be the position if the Notice was served at the same time as the tenant signed the tenancy agreement [ fixed term Lease for 7 years, also commencing immediately ? Would the Notice be incureably invalid ? Can you suggest any other helpful precedents ?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.

Alex Watts :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return. There is no need to wait here, you will get an email when I reply.

Alex Watts :

Bedding and others v McCarthy - [1994] 2 EGLR 40

Alex Watts :

n the morning of December 18 1990 the appellant tenant was first given a notice in the prescribed form under section 20(2) of the Housing Act 1988 and then entered into a tenancy agreement of a dwelling for a term of six months from the commencement date of December 18 1990. In the afternoon the tenant went into possession. The appellant appealed the decision in the county court that he held the premises by an assured shorthold tenancy, contending that the term granted was, by a few hours, less than the six months required of an assured shorthold tenancy and that a section 20 notice given on the same date as the grant of an agreement was not given before the tenancy which commenced on the same date.

Alex Watts :

Held: The appeal was dismissed. In computing a period of time, no regard is paid to fractions of a day, in the sense that the period is regarded as complete although it is short to the extent of a fraction of a day. Tenancy agreements deal with years, months and weeks and sometimes days, but not with hours. The agreement was therefore for a period of six months. It was a pure question of fact whether the section 20 notice was given before the grant of the tenancy; the trial judge was entitled to find on the evidence before him that the notice had been given before the tenancy agreement was signed.

Alex Watts :

Christopher Naish (instructed by Stevens & Scown, of St Austell) appeared for the appellant; Christopher Thomas QC and James Haywood (instructed by John Rabey & Co, of Truro) represented the respondents.

Giving his judgment of the court at the invitation of Butler-Sloss LJ, NOLAN LJ said: On December 18 1990 the plaintiffs, as landlords, and the defendant, as tenant, entered into an agreement for the tenancy of 21 Beach Road, St Austell, Cornwall. On July 23 1993, Judge Thompson held that the agreement gave rise to an assured shorthold tenancy, as defined bysection 20 of the Housing Act 1988. The effect of that decision was that on termination of the tenancy the landlords were entitled to recover possession, subject to the conditions laid down by section 21 of the Act. The judge ordered possession within 28 days and refused to grant a stay. The defendant now appeals against that decision.NOLAN LJ

Section 20 of the Housing Act 1988, so far as relevant, reads as follows:

  1. (1) Subject to subsection (3) below, an assured shorthold tenancy is an assured tenancy —

  1. (a) which is a fixed-term tenancy granted for a term certain of not less than six months; and

  1. (b) in respect of which there is no power for the landlord to determine the tenancy at any time earlier than six months from the beginning from the tenancy; and

  1. (c) in respect of which a notice is served as mentioned in subsection (2) below.

  1. (2) The notice referred to in subsection (1)(c) above is one which —

  1. (a) is in such form as may be prescribed;

  1. (b) is served before the assured tenancy is entered into;

  1. (c) is served by the person who is to be the landlord under the assured tenancy on the person who is to be the tenant under that tenancy; and

  1. (d) the assured tenancy to which it relates is to be a shorthold tenancy.

Subsection (3) is not relevant for present purposes. The term “assured tenancy” is defined by section 1 of the Act. There is no need for us to explore section 1 because it is common ground that the tenancy in the present case was an assured tenancy as defined. It is also common ground between the parties that, as indeed appears from the documents themselves, there was no power for the landlords to determine the tenancy; the notice was in the prescribed form; the notice was served by the prospective landlords on the prospective tenant and the notice stated that the tenancy would be a shorthold tenancy. The issue is whether the tenancy was for a term of not less than six months and whether the notice was served before that tenancy was entered into.

The agreement itself describes the term as six months from the commencement date, that is to say, from December 18 1990. It is agreed, however, as a matter of fact, that the events of that day consisted in the morning of the service of the prescribed notice by the landlords on the tenant and the return of that notice duly signed by the tenant and then, still in the morning, the signing of the tenancy agreement by all parties. Then, in the afternoon, the defendant actually took possession of the property.

What is argued by the defendant is that the tenancy can be described as one for not less than six months only if it included the whole of the period from the beginning of December 18 1990 to the end of June 17 1991. But in fact, submits Mr Christopher Naish for the defendant, it was for six months less the hours before the signature of the agreement during the morning of December 18.

Mr Naish, who has not only presented an extremely helpful and clear skeleton argument but also argued his case with conciseness and clarity, invites us to bear in mind that this Act deprived many tenancies of the sort of protection which they would have otherwise have enjoyed and therefore should be strictly construed. He refers us in support of his initial proposition to the case of Roberts v Church Commissioners for England [1971] 3 WLR 566 and relies in particular on what is said by Russell LJ in the course

[1994] 2 EGLR 40 at 41

of his judgment in that case. The facts of that matter were this: in October 1952 the landlords granted a lease for a term described as 21 1/4 years from March 25 1950. The court held that the lease did not create a long tenancy as defined since the tenancy granted could not take effect before the date of execution and delivery of the lease — that is to say, could not take effect until October 1952.

In the course of his judgment at p569F of the report, Russell LJ said:

In the course of the argument I ventured to suggest a test, which is that to fulfil the definition a tenant must at some point of time be or have been in a position to say that, subject to options to determine, rights of re-entry and so forth, he is entitled to remain tenant for the next 21, whether at law or in equity.

Now, said Mr Naish, applying that to the circumstances of the present case, consider the position of the defendant in the early hours of December 18 1990. Could he, at that point in time, say that he was entitled to a tenancy for a term of not less than six months? The answer was no, he was not entitled to any tenancy at all. Conversely, towards the end of that day, after the tenancy had been entered into, could it be said that he could remain as a tenant for a period of six months measured from the afternoon? Again Mr Naish submits the answer is no.

To that proposition, the landlords in their skeleton argument referred us to Halsbury's Laws of England, 4th ed, vol 45, para 1143. In that paragraph we find quoted what is described as the general rule relating to fractions of a day and I need read only the first two sentences:

In computing a period of time, at any rate when counted in years or months, no regard is, as a general rule, paid to fractions of a day, in the sense that the period is regarded as complete although it is short to the extent of a fraction of a day. In cases in which the day of the date of an instrument of lease is included in the term it is immaterial that the tenant's enjoyment cannot begin with the beginning of that day.

This proposition, which is supported by copious and ancient authority in the notes to the text of Halsbury's, appears to me to dispose completely of the initial argument put forward by the defendant. It is, of course, a commonplace that tenancy agreements and leases deal with years, months and weeks and sometimes days, but not with hours, minutes or seconds, so the lease in the present case is described as a tenancy agreement for a period of six months. That is, in my judgment, perfectly consistent with the description of the proposed tenancy in the notice as one running from December 18 1990 to June 17 1991. That is precisely how it would be construed and understood in the ordinary law of landlord and tenant and I can see no reason why some different standard or approach should be adopted for the purposes of the Housing Act 1988. The remarks of Russell LJ were directed solely to the common form of tenancy agreement dealing with, in that case, years and months. They were not directed or supportive of the proposition that the term of the tenancy should be measured by reference for something less than a whole day.

Mr Naish says if that is so and if it be the case that the tenancy agreement signed during the morning of December 18 dates back to the beginning of that day, then the landlords fail to satisfy the condition specified in section 20(2)(b), namely the condition that the notice must be served before the tenancy is entered into. This seems to me to confuse the time when the tenancy is entered into with the time when, as a matter of law, it is deemed to commence. It would seem to me clear that the tenancy was entered into when the agreement was signed. It is not the less clear that it was entered into at that point in time because it was deemed to commence some hours earlier.

We come to the question which appears to me to be a pure question of fact: was the notice served before the tenancy was entered into? Mr Naish says it is not consistent for that purpose to look at the fractions of a day. If you are going to ignore fractions of a day, you must do so consistently. But again, I think that is wrong. In para 1144 of Halsbury's Laws it is stated:

The general rule that fractions of a day are to be disregarded does not apply where the object of a statute would be defeated unless the precise hour of an occurrence were noted, or where conflicting claims depend on the question which of two events was first in order of time, for then the particular hour when the events occurred may become material.

It seems to me the question posed by section 20(2)(b) falls within that category. It is a pure question of fact whether the notice was or was not served before the tenancy was entered into and the agreed statement of facts on its natural reading establishes that it was served before the tenancy was entered into. In terms, the agreed statement of facts states, “The defendant signed document 5”, that is the notice, “and returned it, and then all parties signed document 4”, that is the tenancy agreement. Mr Naish argued that these should be regarded essentially as contemporaneous events. He submitted that on their most favourable reading there can only have been a short time between the two events and it is not therefore to be assumed that the purpose of the Act was fulfilled because this, he submitted, must contemplate a reasonable period of time being given to the proposed tenant to study the document and determine what it is that he is entering into. The difficulty here is that the Act says nothing to suggest that there must be any particular minimum time.

It is, as it seems to me, for the judge trying the matter in the event of any dispute to decide whether, on the sensible reading of the Act, the service of the notice did precede the entering into of the assured tenancy. Here, whatever doubts there may have been as a result of the somewhat terse phraseology of the agreed statement of facts, it must be taken to have been resolved by the judge who heard evidence on this point. He was quite satisfied that these documents were not signed contemporaneously, but that one did indeed precede of the other.

The notice is no doubt very deliberately expressed in simple and clear terms, which any normal layman could comprehend at first reading without difficulty so even if, as seems highly unlikely, the defendant tenant had no idea what he was going to be asked to sign before the documents were actually executed that morning. I see no reason whatever to suppose that the learned judge was in error in finding that the condition specified in section 20(2)(b) was satisfied.

In sum, in my judgment, the notice, as a matter of fact, was served before the tenancy was entered into. The tenancy, once entered into, was for a term certainly not less than six months — that is from the first moment of December 18 1990 to the last moment of June 17 1991 and accordingly I conclude that an assured shorthold tenancy was created.

At the outset of these proceedings, Mr Christopher Thomas QC, for the plaintiffs, submitted that in any event we should not proceed to deal with the appeal because there had been no appeal by the tenant against the judge's refusal to grant a stay of execution beyond the 28-day period. Indeed, the tenant had complied with the order for possession by leaving well within the 28 days and before entering a notice of appeal. I would prefer to express no view upon that matter. It was argued by Mr Naish, but without an opportunity to refer to the authorities; I think it may well present a question of real difficulty. In the circumstances there is no need for a decision to be reached upon it and therefore I leave it open. I would, however, for the reasons given, for my part dismiss this appeal.

BUTLER-SLOSS LJ agreed and did not add anything.BUTLER-SLOSS LJ

Appeal dismissed.

Alex Watts :

Can I clarify anything for you about this today please?

Alex Watts :

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