Holding down sweet charity

Zafar v Goddard, Bristol County Court, 13 December 2010

Word reaches us from the West Country of a not uninteresting case heard in Bristol County Court before Christmas.

Although we haven’t seen a transcript, we have been provide with an unapproved note of the judgment of DDJ Batstone.

The case came before the DDJ as a small claims case with a considerable history. Shortly after entering into an AST in 2008 Mr Goddard had left the property, with several months of the minimum period still to run. The first set of proceedings were then commenced by the landlord, Mrs Zafar, for unpaid rent up until the expiry of the tenancy. Mr Goddard counterclaimed for disrepair and raised as a defence that he had never been served with a notice complying with Landlord and Tenant Act 1987, s.48. The DJ who dealt with those proceedings found as a fact that no valid s.48 notice had been given, so no rent was due, and dismissed the counterclaim for lack of notice.

After those proceedings had concluded Mrs Zafar then served a s.48 notice on the Defendant and commenced fresh proceedings for the unpaid rent for the period during which the Defendant had left the property, but would still be contractually liable.

After several occasions where the claim was struck out and then restored it eventually came before DDJ Batstone in December. The principal issue before him was whether a purported s.48 notice could be served after the tenancy had come to an end. Section 48 of the 1987 Act reads:

“(1) A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.

“(2) Where a landlord of any such premises fails to comply with subsection (1), any rent, service charge or administration charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.”

It was not in dispute that subs.(3) was not relevant.

The argument for Mr Goddard was that s.48 required notice to be served on a tenant – once the tenancy had come to an end he was no longer a tenant, therefore he could not be validly served with a s.48 notice.

The DDJ considered the Court of Appeal decisions in Dallhold v Lindsey [1994] 1 EGLR 93 and Rogan v Woodfield [1995] 1 EGLR 72, but noted that they did not address the specific question that was before him. Mrs Zafar relied in part on the Housing Act 2004, but in his judgment that was a different statutory scheme, using different wording.

In DDJ Batstone’s judgment the wording of s.48 is plain. It relates to “landlord” and “tenant”. It is in accordance with the policy of the 1987 Act, which indicates that notice must be served during the course of the tenancy. The judge accepted that there were arguments either way and noted that the policy, as he had interpreted it, might not be achieved by a landlord serving a notice one day before a tenancy ended.

There was a further issue about what the total sum of rent would be if was found to be due, but that need not concern us here.

The DDJ granted permission to appeal, but no word yet on what is happening with that.

Kudos to the University of Bristol’s Law Clinic, which ran the case on a pro bono basis for over two years.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
Posted in Assured Shorthold tenancy, Housing law - All and tagged , .

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