18/05/2014

Approximate grounds

Masih, R (on the application of) v Yousaf [2014] EWCA Civ 234

When a notice is served under Section 8 Housing Act 1988, how precise does the wording of the ground(s) under which possession will be sought have to be?

In this case, reaching the Court of Appeal via a slightly convoluted route as an appeal  of an order refusing permission to appeal out of time, the issue was the wording used in the s.8 notice setting out Ground 8.

Ms M was the assured shorthold tenant of Mr Y. There were rent arrears, a shortfall between the LHA payable and the rent. Mr Y served a notice under s.8 giving ground 8 as the ground on which possession was sought.

A possession order was indeed made after a hearing which Ms M attended. Ms M then sought to have the order set aside and also to appeal out of time on the basis that the Notice was defective as it “did not comply with section 8.2 of the Housing Act 1988 in that it did not properly specify the ground relied on”.

The Notice said

“Your landlord intends to seek possession on ground(s) 8 in schedule 2 to the Housing Act 1988 as amended by the Housing Act 1996, which read(s): that the tenant owed at least two months’ rent both when the landlord served notice that he wanted possession and still owes two months’ rent at the date of the court hearing.”

And, in the part of the notice where a full explanation of the ground relied on is required, Mr Y put:

“The tenant owes £1,680 which represents three months’ rent.”

The relevant part of Ground 8 (Schedule 2 Housing Act 1988) reads:

“Both at the date of service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing —
(b) If rent is payable monthly, at least two months’ rent is unpaid. And for the purposes of this ground ‘rent’ means rent lawfully due from the tenant.”

Ms M’s main argument was that the Notice did not include the words “rent means rent lawfully due from the tenant”.

Mountain v Hastings 35 HLR 7 had held that there was no requirement for the words in a s.8 notice to be the same as the statutory wording of the ground, so long at the words used were:

“adequate to achieve the legislative purpose of giving the tenant the information which the provision requires to be given in the notice to enable the tenant to consider what he should do and do that which is in her power to put things right and best protect her against the loss of her home”.

In Mountain v Hastings, the wording used was inadequate as the notice did not include the “requirement that the rent was unpaid at both the date of the service of the notice and the date of the hearing and that “rent” meant rent lawfully due”. That notice referred to ‘rent unpaid’.

Mr Y’s notice did set out the rent unpaid at date of service and date of hearing part, so the only issue was whether it was a requirement for the notice to specify ‘rent lawfully due’ rather than ‘rent owed’ as per the notice.

The Court of Appeal took the view that ‘rent unpaid’ in Mountain was clearly different to ‘rent lawfully due’. “The party served with a notice stating that rent is unpaid would not appreciate that it would be open for him to say that although the rent is indeed unpaid, it was not lawfully due”. But the meaning of’ rent owed’ was a different issue. Did the statutory wording of ‘rent lawfully due’ add anything to the effect of ‘rent owed’?

Ms M argued that ‘rent lawfully due’ did have additional meaning:

A notice merely stating that rent is owed is not sufficient to alert a tenant to the fact that she may have, for example, a counter claim based on the cost of repairs which the landlord should have carried out, which she might claim to set off against the rent. He also pointed out a further example where the landlord had failed to comply with the statutory duty to give the tenant particulars of his address, see section 48 of the Landlord and Tenant Act 1987, which prevents a landlord from recovering rent where he has failed to supply an address in England and Wales at which notices may be served on the landlord by the tenant.

However, the Court of Appeal was unimpressed, finding that ‘owed’ and ‘lawfully due’ had the same effect in alerting the tenant.

In contrast to a statement that rent is unpaid, a statement in a section 8 notice that the rent was owed in my judgment is sufficient notice to enable a recipient to appreciate that it would be an answer to the claim to show that the rent was not lawfully due, thus the recipient of a notice using the word “owe” is aware that he or she must find some basis for showing that the rent is not owed. Thus Miss Masih’s defence of waiver is a defence that the rent is not owed. Miss Masih’s desire to counter claim for repairs is, if she is right that she is able to set it off against the rent, equally a claim that the rent is not owed. Of course if she is wrong about the set-off then it is not an answer whether the notice is phrased with the word “owed” or “lawfully due”. The same can be said of Mr Carrott’s [for Ms M] example based on section 48 of the Landlord and Tenant Act 1987. Although section 48(2) says that rent otherwise “due” shall be treated as not being due, the effect of it not being due is also that it is not owed.

In order for this submission to succeed, it would be necessary to find an example of a case where rent is owed but is not lawfully due. For my part I am unable to think of any such case and none has been suggested to us in argument.

The appeal therefore failed.

But before anyone gets too excited about there being leeway in the wording of s.8 notices, they should note how small the difference in wording was that enabled Mr Y’s notice to be valid – ‘rent owed’ rather than ‘rent unpaid’. It would be all to easy for a form of wording used to fall foul of the requirement set out in Mountain that it fulfil the legislative purpose.

In view of this, and as the Court of Appeal quotes approvingly from Mountain v Hastings:

“It is difficult to think of any good reason why a person given the task of settling a form of notice should choose to use words differently from those in which the Crown has stated in the schedule.”

Quite.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. kjetilniki

    been rereading Masih.
    the key bit is para 26
    26.In order for this submission to succeed, it would be necessary to find an example of a case where rent is owed but is not lawfully due. For my part I am unable to think of any such case and none has been suggested to us in argument.

    the meaning of lawfully due was considered by the CoA in Bird v Hildage [1948] 1 K.B. 91 as being when a person can take legal process steps ie sue or distraint.

    In our view, rent is not lawfully due unless it can be recovered by process at law. A landlord may recover rent lawfully due in two ways, that is, either by distress or by judgment in an action.

    there are 2 cases where rent is owed but not lawfully due.

    no 1
    Rent is due on Monday but the tenant has all day to pay and cannot be sued or distrained until Tuesday and therefore rent is owed on Monday but not lawfully due until Tuesday

    No 2
    On the other hand, rent due on a Bank Holiday is not payable until the following day

    Banking and Financial Dealings Act 1971 section 1
    (4) No person shall be compellable to make any payment or to do any act on a bank holiday under this Act which he would not be compellable to make or do on Christmas Day or Good Friday; and where a person would, apart from this subsection, be compellable to make any payment or to do any act on a bank holiday under this Act, his obligation to make the payment or to do the act shall be deemed to be complied with if he makes or does it on the next following day on which he is compellable to make or do it.

    I take the view that It is still worth arguing that where owed is used or they fail to include “And for the purposes of this ground ‘rent’ means rent lawfully due from the tenant.” there fall foul of Hastings and that Masih does not bind due to para 26

    kjetilniki

    Reply
    • Giles Peaker

      Example 1 – rent not owed ‘owed’ on the Monday. It is due on the Monday (up to midnight on your example). Becomes owed if not paid when due – so the Tuesday

      Example 2. Ditto. Effect of the Act is to make rent due the day after bank holiday by shifting the date for compliance with the obligation to the next day.

      And this case is court of appeal authority, so not a lot of point in arguing it, unless you are aiming for the Supreme Court…

      Reply

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