Introductory Tenancy

March 23rd, 2017 by James Goudie KC

The purpose of introductory tenancies is to provide what the Housing Act 1996 refers to as a trial period in which the landlord may determine the tenancy without having to establish the grounds for possession required in the case of a secure tenancy. This gives a social landlord an opportunity to form a view about the suitability of the tenant against a background of historic anti-social behaviour without becoming subject to the restrictions imposed in respect of a secure tenancy. The trial period is normally one year but can be extended for a further six months: see ss.125 and 125A.

Although the statutory grounds for possession do not have to be satisfied, the tenant is given a measure of protection by s.128 of the Act which provides that:

“(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.”

A tenant who wishes to seek a review of the decision to seek possession must make a request within 14 days of the date of service of the notice of proceedings: see s.129(1). In that event the landlord is obliged to carry out a review and notify the tenant of the result before the date specified in the notice of proceedings as the date after which possession proceedings may be begun: see s.129(5). If a notice is served in compliance with s.128 and there is no change following a review in the landlord’s decision to seek possession then the Court must order possession and, on the execution of the order, the introductory tenancy comes to an end: see s.127.

In Islington LBC v Dyer [2017] EWCA Civ 150 the issue before the Court of Appeal was whether a notice of possession proceedings was valid.  The tenant’s contention was that s.128(7) had not been complied with. This was because of what was not included in the notice itself, but in a covering letter.  The letter was not part of the notice.  The Council’s contention was that the notice comprised the documents served with that letter both the notice and an information leaflet which accompanied it.

The Court of Appeal proceeded on the assumption that the provisions of s.128(7) are mandatory. The Court identified the question for them as whether, as a matter of statutory construction, a notice under s.128 may be comprised in more than one document (and, if so, whether the documents in the case satisfied the statutory requirements). Patten LJ said:-

“15.    There is no prescribed form for a s.128 notice and so the starting point has to be whether the document or documents relied on can reasonably be described as a notice. In order to do so they have to give the tenant notice of the intended proceedings in compliance with the section: see s.128(1). To comply with the section the notice must contain the other information which s.128 prescribes. There is nothing in s.128 which limits the notice to a single page or a single document and in my view no such restriction can be spelt out of the statute. It will therefore be a question of objective fact in every case whether the documents relied on do or do not form part of the notice.”

“17.    There is no direct authority on the point in issue in relation to s.128. But in other statutory contexts the courts have been prepared to treat more than one document as constituting the relevant notice for the purpose of satisfying the statutory requirements about its contents. In City of London Corp v Devlin [1997] 29 HLR 58 this Court had to consider whether the landlord had served a valid notice under s.83 of the Housing Act 1985 which was the pre-requisite to the commencement of proceedings for possession in relation to a secure tenancy. According to the Secure Tenancies (Notices) Regulations 1987/755 the notice had to be in a prescribed form or in a form substantially to the same effect. The prescribed form provided for the notice to be signed on behalf of the landlord but the notice that had been served did not include the signature of the director of housing. The notice had, however, been served under cover of a letter from the City’s estate office and this was accepted as sufficient to complete the statutory formalities.

  1. It seems to me that this Court must by necessary implication have accepted that the letter, although a separate document from the notice as such, could be treated as one with the notice for the purpose of satisfying the requirements of the regulations. By parity of reasoning, I can see no reason in principle why the Information Leaflet should not be treated as part of the notice required to be served under s.128 if the reasonable recipient would have understood that they were intended to be read together.”


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