But that isn’t what it says…

[Edited 16/05/2012 to correct the s.47(2) point]

Beitov Properties Ltd v Elliston Martin [2012] UKUT 133 (LC) is, I suspect, going to cause some sleepless nights for managing agents of long leasehold properties (and, possibly, some other agents and landlords).

Section 47, Landlord and Tenant Act 1987 applies to all demands for rent (whether ground rent or “normal” rent), service charges and administration charges. It requires that all written demands for payment of such sums must “contain… the name and address of the landlord and… if that address is not in England and Wales, an address in England and Wales at which notices… may be served on the landlord by the tenant.” If this information is not provided, then the sums are not due “any part of the amount demanded which consists of a service charge” is not due (S.47(2)).

In the present case, the service charge demands had given the name of the landlord, but not his address. Rather, they gave the address of the managing agents. The LVT held that this was insufficient to comply with s.47 and, hence, the service charges were not due. They rejected an argument that it was good enough to give the details of the agent, holding that the requirement as to give the registered address or trading address (in the case of a company).

The Upper Tribunal dismissed an appeal. The wording of s.47 was clear. The requirement as to provide the name and address of the landlord, not of any other party. If that address was not in England or Wales, then an address in the jurisdiction had to be provided. Either way, the demand had to tell the tenant who the landlord was and where he could be found. In the case of an individual, this would be his place of residence or business. In the case of a company, it would be either the registered office or place of business. None of this had been complied with, so the appeal was dismissed.

The Upper Tribunal did (to my mind, rather unfairly) appear to criticise the LVT for taking such a technical point (“balls aching” as one learned member of the NL team called it). I’m not sure that’s fair. If it’s the law then it’s the law. The LVT can’t chose which laws to enforce and which to ignore. This appears to be a large commerical landlord, with access to professional advice. It’s surely not too much to ask that they get this bit right?

As to the wider consequences. First, I rather suspect this landlord (or, rather the agents) are urgently checking their demands again. But this is a wider issue. I know of many managing agents that take the same approach as in this case. I rather suspect it’ll be a while until this filters into the wider consciousness. Until then, this “balls aching” point is there to be taken.

 

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.
Posted in Housing law - All, Leasehold and shared ownership.

13 Comments

  1. So the LVT took a point that
    a) hadn’t been taken by the tenant
    b) wasn’t argued on the paperwork
    c) wasn’t orally argued in any detail at the hearing
    d) didn’t affect the merits of the case; and
    e) which the landlord could rectify with a new demand at any stage

    AND the Upper Tribunal supported them (albeit reluctantly) and you still think they were right to do so?

    I wonder what would have been your view if they had done something similar against a tenant?

    They are a tribunal, and meant to decide things on their merits, not in nit-picking terms the most Chancery of Chancery Judges would have been proud of.

  2. Well:
    (a) It is part of the “honourable tradition” of the LVT (and other tribunals) to take points which clearly emerge from the evidence;
    (b) whilst not argued, the point does manifestly emerge from the evidence;
    (c) although it wasn’t the subject of detailed oral submissions, the LVT allowed written submissions, which surely overcomes any unfairness;
    (d) merits – perhaps not, but the law is the law; and,
    (e) The landlord can *probably* rectify it. It isn’t absolutely certain that he can.

    If something had been done against a tenant… well, how? They don’t usually issue demands for money for adjudication by the LVT. If the LVT had taken a point of its own motion which shot down an argument the tenant was raising, I can’t see I’d complain.

  3. The LVT were absolutely right to take the point. This strikes me as a Barton-v-Fincham like situation.

  4. Perhaps I went too far. But they have opened a can of worms which could easily have been left alone.

  5. It is important for the tenant to know the landlord’s actual address, so that the tenant can take proceedings if necessary, for breach of covenant, harassment, or breach of statutory duties, for example. The practice of using PO box numbers, or other mailbox addresses, enables landlords to hide from their tenants, and evade prosecution or civil enforcement. The LVT was quite right to stop this, and I think the President of the Upper Tribunal was wrong to criticise the LVT for taking the point.

    • Michael – the address for service of notices etc. is required by s.48, not s.47 and that can be quite different (and can be the agent’s address). I agree that this can mean landlords evading enforcement.

      But the LVT hasn’t stopped landlords not putting their address on rent demands. S.47 says they must, but there is no penalty. It is only service charges that aren’t due unless the address is included. Rent is still due.

    • Michael, I very much doubt this message will reach you and I appreciate that your post is 4 years or so old, but I wanted to ask your opinion. I live in a block of apartments in London where the freehold is owned by a company based in the British Virgin Islands. My managing agent has now provided (on the service charge bill) the address of the freeholder (BV Islands) and an address in England for the forwarding of notices. Now then..I’ve read up on Beitov and if the judge ruled that a leaseholder must be able to identify his landlord then where do I stand being as the landlord is based in the BV Islands (no doubt the adress given is a post box) and the address for the servicing of notices in England is an empty office unit (which a contact of the freeholder obviously has access to in order to collect mail). I’d say that I still dont know who my landlord is and I wouldnt stand a chance in hell of finding him. Your views appreciated.

    • You can identify your landlord. It is a company registered in the BVI and you have their address. You’ve been given an address for service of notices in England. That is sufficient for section 47 – see 9 of Beitov and then the second part of 11.

  6. S47(1) is about demands for payment and says LL name and address AND if not in England and Wales an address in England and Wales for service. Then (2) only talks only about services charges not being due,(rent is not mentioned) but then (4) says a demand for rent or other sums payable.. Why does (2) only talk about services charges and not rent? I can see from the annotations of amendments on legislation.gov that s47(2) was about services charges and rent was dealt with in s48(2) but s47(4) has not been modified and the words demand for rent were always there.

    s48(1) is about notification and only says an address for service in England and Wales and (2) talks about rent (and amended to include service charges) not being due (and I am guessing that s48 means whether they are demanded or not)

    reading Beitov, it says for the purposes of s47(1) , it says about s48 making a separate provision and it says about s47 having a wider purpose. but it appears narrower in purpose to me if it only refers to service charges. Beitov says “the place where the landlord is to be found. In the case of an individual this would be his place of residence or the place from which he carries on business.”

    If a landlord has not provided any address then it could be argued that nothing is due until he complies with s48.

    But where a landlord notifies of some address but the address is neither his residence nor his business address and is not the address of any sort of letting/managing agent to do with his business.
    I’m thinking either a relative, a commercial business address of a friend, a private golf club, or giving different tenants the address of other tenants as an address for service.

    can it be argued that rent is not due until the LL provides a legitimate address?
    and comply with which s47 or s48?

    • Wider purpose because service charges could apply to leasehold property? and I was thinking to narrowly as i was only thinking residential letting.

  7. Sam, I genuinely can’t work out what you are saying (or asking).

    If the landlord’s actual address is not provided on a demand as required by s.47, then service charges are not payable until it is provided.

    If the landlord does not provide an address for service of notices in England and Wales, as required by s.48, then rent or service charges are not due until it is provided.

    But those can be two completely different addresses. And there is no requirement for the address for service of notices to be the landlord’s home address, business address or agent.

    • i’m not a legal professional so thank you for your patience, I don’t understand the wider purpose of s47. Effectively a landlord can give any name and any address in England and Wales for the service of notices so that rent and services charges will become due.
      but if the actual name and address of the landlord is not provided then only the service charges cannot be demanded. The rent can still be demanded. even when the tenant has no idea who the landlord is or where he is.

      its odd in a way that the landlord is required to check the immigration status of tenants or lodgers before letting. but the tenant has no way to uncover and no defence from a landlord who is being dishonest about who he is.

    • Well they do, that is the point of s.47 and s.48.

      Agreed it is an odd difference between the two. But the address for service of notices is the key one, as that is where the tenant gets to exercise their legal rights.

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