How late it was, how late

On the death of a tenant (without successor, if there is a possible succession) section 18 Law of Property (Miscellaneous Provisions) Act 1994 provides:

“Notices affecting land: service on personal representatives before filing of grant.

(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if—

(a) it is addressed to ‘The Personal Representatives of’ the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and

(b) a copy of it, similarly addressed, is served on the Public Trustee.”

What does this mean in practice?

Pavey v LB Hackney. Central London County Court 21 November 2017 (copy of judgment).

This was an appeal to a circuit judge from a first instance possession order made by a district judge. It also reviews a first instance decision in Hackney LBC v Henry, County Court at Clerkenwell and Shoreditch, 23 March 2017 as reported in Legal Action June 2018.

In brief, in both cases, Hackney LBC had served notice to quit on the occupants of Hackney’s properties after the death of the secure tenant, giving 28 days notice. The notices gave a date for expiry and the usual saving clause of ‘or the day on which a complete period of your tenancy expires next after 28 days from the service of this notice’.

Then, some months (in one case 17 months) later, Hackney had served notice to quit on the public trustee. And then Hackney brought possession proceedings, relying on the first NTQ on the property.

At first instance in this case, Hackney were successful, with the DJ finding the NTQ was valid

by operation of the saving provision in the notice which had been triggered when the notice was served by way of delivery of a copy of it to the Public Trustee. The tenancy therefore fell to be determined on the completion of 4 weeks of the tenancy after the service on the Public Trustee

On the other hand, in Hackney LBC v Henry, a week or two later, Hackney lost at first instance, with the DDJ finding

the saving clause ran from the date the notice to quit was left at the property and not the date on which the copy was sent to the Public Trustee. And

Even if the saving clause could be construed as Hackney proposed, it would not meet the common law requirement of clarity to the reasonable recipient

On this appeal, HHJ Luba QC found:

    1. On a proper construction, the ‘saving clause’ only ran from when the notice had been sufficiently served. In the context of s.18, that was from when a copy was served on the Public Trustee. To that extent, the decision in Hackney v Henry was wrong.
    2. However, the effect of delaying service of the notice to quit on the Public Trustee was to make the date that the notice to quit took effect unclear:First, it is of importance and significance that, in the twofold service methodology set out in section 18, the actual notice goes to the property addressed to the personal representatives and only a copy of it to the Public Trustee. Secondly, it is important that in both notices there is set out the same date for termination of the tenancy, or the same rubric for determining the date. It cannot have been envisaged by the Law Commission, or by Parliament in enacting the 1994 Act, that the date for determination of the tenancy could or should be understood to be a different date in the hands of each of the two recipients, i.e. the addressees, the personal representatives, and the person to whom a copy was to be sent, the Public Trustee. Thirdly, it is important, particularly in the context of notices intended to determine interests, but also in relation to notices intended to affect interests, that the notices be clear. Mr Davis was inclined to submit that the notice only needs to be clear to the actual tenant who receives it. In my judgment, it is important that it is clear to that person, but it must also be clear to any other person who may legitimately have an interest in the validity of the notice or otherwise. One thinks of those who are sub- tenants of the true tenant, those with other interests contingent on the true tenant, the legal advisers of the true tenant, and indeed, as importantly, the landlord him or herself. They all need to know from an examination of the terms of the document itself, with clarity, when it determines the tenancy.

Appeal upheld.

Comment

My presumption, I have to say, was that notice to quit should be served on both the property (qua personal representatives) and the Public Trustee at the same time. There is, indeed, no reason not to.

Given the competing first instance decisions on the issue, this appeal decision is, at the least, persuasive (not least as the judge was HHJ Jan Luba QC). Where notice to quit has been served on the Public Trustee later than the notice to quit served on the property (qua personal representative), then there is a clear argument that the notice is void for lack of clarity of date of determination of the tenancy.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, assured-tenancy, Housing law - All, Possession, secure-tenancy and tagged .

9 Comments

  1. I am probably being thick (apologies) but couldn’t LBH just rely on the deemed service clause that’s in most secure agreements that says anything posted through the letter box is deemed served? I appreciate the secure status of the tenancy has gone but doesn’t the contractual tenancy and its express terms still subsist?

    • Gotcha. So if it had just been posted through the letter box (relying on the express clause in the tenancy agreement) and not sent to the PT at all, would have been fine?

  2. I assume that the date of “service” on the Public Trustee is deemed to be the date of the letter from the Public Trustee confirming that the NTQ has been registered and that this date has to be a date prior to the actual expiry date of the NTQ because if after, it makes the NTQ invalid also?

    • No, the date the NTQ would be deemed served on the Public Trustee. The issue about invalidity is if the notice served on the Trustee has a later date of taking effect than the one served on the property/PRs. It makes the date of expiry of the NTQ unclear for the occupiers/PRs of the late tenant.

  3. a couple of thoughts
    Firstly
    1. Unless I am mistaken s18 is an additional (deeming) mode of service
    “A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if—…”
    2. If a mode of service is set out in Tenancy Agreement and complied with (subject to unfair terms provisions) this would be valid even if not comply with s18.

    Secondly
    3. Formula dates are valid. Formula dates referring to the date of service are only clear, if indeed they are clear, to the person served and/or the person serving and are not invalid.
    4. That rather puts a hole in Luba’s logic [altho’ I agree it’s important it would appear for the reason above to be legally irrelevant]
    “In my judgment, it is important that it is clear to that person, but it must also be clear to any other person who may legitimately have an interest in the validity of the notice or otherwise. One thinks of those who are sub- tenants of the true tenant, those with other interests contingent on the true tenant, the legal advisers of the true tenant, and indeed, as importantly, the landlord him or herself. They all need to know from an examination of the terms of the document itself, with clarity, when it determines the tenancy.”

    Best wishes
    kjetilniki

    • Yes Kjetilniki your first point is the one I was (clumsily) trying to make above. The deeming provision presumably exists so that legal action can be taking during the probate process. If there is nothing in the agreement re service then you could be in difficulty without s.18. But you are not obliged to use that method, the requirements only apply if you are trying to make use of the s.18 process.

      But if you do have a contractual service method, that just vests in the PRs on the tenant’s death and is still valid and can be relied on.

      Maybe that wasn’t argued in this instance.

  4. MM (and Kjetilniki) Service was not an issue.

    Kjetilniki – the point is that the formula dates were not valid (or at least the formula dates in the first NTQ served on the property/PRs). The tenancy is not terminated until notice also served on Public Trustee. So PRs or occupants couldn’t tell from the face of the notice when it took effect. Nor could the landlord (by its own failing).

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