We reported a county court appeal on the issue of termination of tenancy of a deceased tenant by service of notice on the Public Trustee in Pavey v LB Hackney here. The problem being when the notice to quit was not served on the Estate (at the property) and the Public Trustee at the same time, the actual date of expiry of the notices was unclear.
Now comes another County Court case on the issue, with a report courtesy of Rea Murray of Arden Chambers. Quotes are from her note of the case.
London Borough of Sutton v Dolan, Central London County Court, 17 July 2018
This was a possession claim following the death of an introductory tenant, and an asserted succession. In so far as is relevant, the key point was that LB Sutton had served notice to quit on the Personal Representative of the deceased at the property on 17 March 2017, which purported to expire on 17 April 2017 and included a standard saving clause. They then served a copy of that notice on the Public Trustee, pursuant to the Law of Property (Miscellaneous Provisions) Act 1994, s.18. This, the Trustee confirmed, had been entered on the register on 12 April 2017.
The defendants argued, following Pavey v LB Hackney, that
In this case, because the date of service on the Public Trustee was not known, the Public Trustee may have received it as late as 12 April 2017 and that it would have then been unclear on what date the notice determined the tenancy. On this approach, the notice should fail the test of validity for want of clarity.
The claimant argued
the Public Trustee did not need to determine the date upon which the tenancy determined at all, it being only a copy that was served on him, and his being an administrative office only; his functions in respect of such notices derived from the Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995/1330, (“the 1995 Regs”). Reg 3, provided:
3. — Keeping and recording of documents served under section 18 of the Act
(1) The Public Trustee shall keep a register on which he shall record the details set out in paragraph (2) in respect of every document which is—
(a) served on him under section 18 of the Act, and
(b) is accompanied by an application to register in Form NL(1).
(2) The details referred to in paragraph (1) are—
(a) the name of the deceased person;
(b) a description of the land to which the document relates; and
(c) the date on which the entry on the register was made.
(3) The Public Trustee shall file every document in respect of which a registration is made against the name of the deceased person in respect of whom the document is served.
The Public Trustee had no need to calculate the date upon which the notice determined the tenancy; he had no place to record such information and no such responsibility. That being the case, any ‘reasonable reader’ test (such as in Mannai Investment v Eagle Star Life Assurance [1997] AC 749) HL, either did not apply at all or required only that there be a date on the face of the notice for the Public Trustee to enter into his register of notices. The consequence for the Claimants should be that they were not required to prove exactly when they served the Public Trustee, nor that he was able to calculate the date upon which the notice determined the tenancy, only that they did serve him.
The Recorder found:
i) The Claimant’s evidence on its systems suggested that notice on the Trustee was sent at the same time as notice on the Estate, but there was not sufficient evidence of this, and should be.
ii) Distinguishing Pavey
in which case service on the Public Trustee was five months after service on the Personal Representative at the Property – service was incomplete before both limbs had been completed. Where service on the public trustee was not completed until after the notice on the property had expired, and purported to determine the tenancy, there was scope for confusion about when the notice actually determined the tenancy. He held that this was not the situation in the instant case because the letter registering a copy of the notice to the Public Trustee was sent within the time when the notice was supposed to take effect and the notice was registered in time for it to take effect. He held that the notice was valid and took effect to determine the tenancy on 17 April 2017.
So, on this reasoning, thee is no issue about the date of the Notice on the estate taking effect, so long as it is sent to the Public Trustee within the period before the date the notice takes effect (and, if there is no clear evidence of service on the Trustee, has been registered by the Trustee within that period). As Rea Murray puts it
Although this judgment was on the facts it is important for it appears to add a caveat to Pavey; the landlord does not have to prove exactly when he served the copy notice on the Public Trustee so long as it was probably done within the time when the notice was to take effect to determine the tenancy. And this can be shown by reference to the date of entry on the register. Furthermore, although the 1995 Regs do not feature in the judgment, the inference is that the Public Trustee does not calculate the date of determination of the tenancy, nor does the reasonable reader test apply to him. A further implication is that the Public Trustee does not have to be served on the exact same day as at the Property.
It would, of course, be easier to send the notice to the Estate and the notice to the Public Trustee on the same day and just keep a record of that…
Our thanks again to Rea Murray.