Andrews & Andrews v Cunningham  EWCA Civ 762 Waller, Wilson and Lawrence Collins
By s.19A, Housing Act 1988, an assured tenancy entered into after February 28, 1997, is an assured shorthold tenancy unless it falls within one of the exceptions to be found in Sch.2A. Paragraph 1 of Sch.2A excepts a tenancy where, before it was entered into, the landlord had served notice on the tenant stating that the tenancy was not to be a shorthold. Likewise, para.3 excepts a tenancy which “contains a provision to the effect that the tenancy is not an assured shorthold tenancy.”
By Sch.1, para.10, 1988 Act, a tenancy granted by a resident landlord (as defined) is not assured. On the death of a resident landlord, the tenancy does not become assured for a period of two years, during which the tenant may be evicted, or a new resident landlord may move in: Sch.1, para.20. (See also Sch.1, para.17(1)(c) where the property vests in the Probate Judge). If neither of those events occurs, the tenancy becomes assured.
The claimants were the executors of the estate of a Mr Hodges, who died in November 2001. The estate included a house which had been divided into flats. Prior to his death, Mr Hodges lived in the basement flat. In 1999, he granted the defendant a tenancy of a flat on the ground floor of the house. There was no written tenancy agreement but the defendant was given a rent book which said on the front “assured tenancy”. The defendant cooked Mr Hodges’ meals, cleaned his bedroom, helped him to bed and drove him around the area. As Mr Hodges’ health deteriorated, the defendant provided a greater level of support.