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Court of Appeal considers service of notices on deceased tenants

Thursday 22 October 2020

Nick Bano of the Garden Court Chambers Housing Team has acted in an important Court of Appeal case concerning the proper procedure for serving notice on a tenant who has died without leaving a will.

Nick was instructed by Manjit Mandair of Osbornes Solicitors, and he was led in the Court of Appeal by Justin Bates of Landmark Chambers.

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The case

In Gateway Housing Association v Begum [2020] EWCA Civ 1339, Nick had been instructed to act for the occupier, Mrs Begum, in the County Court.  Her husband had passed away and – as the landlord considered that no one was entitled to succeed the tenancy – Gateway posted a notice to quit to the premises.  Because of the requirements of section 18 of the Law of Property (Miscellaneous Provisions) Act 1994, Gateway also posted a copy of the notice to the Public Trustee a few days later.

The trial concerned a complex legal issue, which had been troubling the County Courts for a number of years: what happens if the two copies of the notice arrive during different periods of the tenancy? 

In a recent County Court decision (Hackney LBC v Pavey, November 2017) HHJ Luba QC had held that the two copies of the notice cannot arrive on (materially) different dates.  If they do, the two recipients of the notice would calculate the notice period differently: the copy that arrives at the address would expire on a different date to the copy sent to the Public Trustee.  The notice, according to HHJ Luba, would therefore be void for uncertainty.

In a different County Court decision (Sutton LBC v Dolan), a recorder had decided that it did not matter if the notices were received on different dates, as long as the Public Trustee had been served within the notice period of the copy that was sent to the premises.

In Begum Deputy District Judge Smith followed HHJ Luba’s decision in Pavey.  However, recognising that there were conflicting views at circuit judge level, he granted permission to appeal and transferred the appeal to the Court of Appeal.

 

The Court of Appeal’s decision

The Master of the Rolls, Lewison and Carr LJJ effectively overruled Pavey and held that the recorder had been correct in Dolan: as long as the Public Trustee is served before the notice that was sent to the premises has expired, there has been good service for the purposes of section 18.

The case was remitted to the deputy district judge for consideration of Mrs Begum’s other defences.

 

Comment

This judgment does not eliminate practical difficulties for landlords serving notices to quit on deceased tenants.  An occupier pleading a defence will almost inevitably need to put the landlord to proof that the Public Trustee has been served within the relevant period.

While there will generally be a presumption that a notice that has been posted to the Public Trustee has arrived in the ordinary course of post (section 7 of the Interpretation Act 1978), there will be cases (like this one) where the Public Trustee does not actually receive the notice for some time.

Occupiers’ advisers should therefore look carefully at the landlord’s evidence of service on the Public Trustee, and it may be a good idea to contact the Public Trustee in order to find out the date of receipt.

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