Gateway Housing Association v Personal Representatives of Ali & Anor (2020) EWCA Civ 1339

In which the Court of Appeal grapple with the requirement to serve a copy of a notice to quit on the Public Trustee, when serving notice on the personal representative of a deceased tenant.

The issue was simply whether the Public Trustee had to have been served with the copy of the notice with the same expiry date as the notice served on the property/personal representative. (The notice gave an expiry date of 12 November 2018, but with a saving clause of expiry of the next period of the tenancy). It was accepted that the landlord:

sent a copy of the notice to quit on the Public Trustee on 18 October 2018 by first class post, with a deemed service date of 22 October 2018. In an email dated 4 December 2018 to Gateway the Public Trustee stated that the application for registration of the notice to quit was received on 30 October 2018, had been reviewed and was awaiting registration. The Deputy District Judge found that the application was accompanied by a copy of the notice to quit. The email further stated that the application would be recorded on the register as at the date it was received, 30 October 2018. In those circumstances, it is not disputed that the notice expired on 2 December 2018.

Section 18 Law of Property (Miscellaneous Provisions) Act 1994 provides:

“18 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.
(2) The reference in subsection (1) to the filing of a grant of representation is to the filing at the Principal Registry of the Family Division of the High Court of a copy of a grant of representation in respect of the deceased’s estate or, as the case may be, the part of his estate which includes the land in question.
(3) The method of service provided for by this section is not available where provision is made—
(a) by or under any enactment, or
(b) by an agreement in writing,
requiring a different method of service, or expressly prohibiting the method of service provided for by this section, in the circumstances.”

In the first instance judgment in this case, The DDJ had held that because the expiry dates of the notice sent to the Property and the copy sent to the Public Trustee were different, the notice to quit was invalid for lack of clarity, on the basis that:

the notice to quit fails the test of validity for lack of clarity because the notice that was served at the Premises (which was deemed served on 17th October 2018) purports to determine the tenancy on 12th November 2018 or 18th November 2018 (being the day on which a complete period of the tenancy expired next after the end of four weeks from the date of service), whereas the copy that was served on the Public Trustee (which was deemed served on 22nd October 2018) purports to determine the tenancy on 12th November 2018 or 25th November 2018 (being the day on which a complete period of the tenancy expired next after the end of four weeks from the date of service).

This was with reference to the judgment of HHJ Luba QC in Pavey v LB Hackney. Central London County Court 21 November 2017 (our note).

The landlord appealed.

The Court of Appeal was not impressed by three of the grounds of appeal, but found for the landlord on the matter of statutory interpretation.

It was central that what s.18(1)(b) required was service of a copy of the notice.

With all respect to Judge Luba’s careful analysis, we consider that he has mischaracterised the significance of the copy served on the Public Trustee, and its inter-relationship with the notice to quit. It is fundamental that what is served on the Public Trustee is only a copy of the notice to quit. It is not an independent, self-standing notice. Mr Bates placed weight on the fact that the Public Trustee is the notional tenant. That cannot, however, be a compelling consideration. In the first place, although the Public Trustee might be the notional tenant in the present case if (as asserted by counsel, but not pleaded) Mr Ali died intestate, the Public Trustee will not be the notional tenant where the tenant died testate and there are executors capable of taking a grant of probate. In the second place, section 18(1)(b) requires the copy to be addressed, not to the Public Trustee, but to the personal representatives. Accordingly, I do not agree with the submission of Mr Bates that what is to be served under section 18(1)(b) of the 1994 Act is not a copy of the notice to quit but, in his words, a notice “of the same form and of the same effect” as the notice to quit under section 18(1)(a). The operative document is the notice to quit and its terms govern the date of determination of the tenancy. The date on which the service of that document is deemed to be served, pursuant to section 18(1), is a different issue.

And it was the notice served on the personal representatives (served on the property) that was key:

other matters reinforce the conclusion that it is the notice to quit left at or sent to the property which is the operative document for determining the tenancy. In the Law Commission’s report (at para. 2.30) and in the draft Bill attached to the report (at clause 4(4)), the Law Commission provided for copies of the notice to go to both the personal representatives at the property and the Public Trustee. In section 18(1) as enacted, however, the original notice is to be served on the personal representatives at the property and only a copy of it is to be sent to the Public Trustee.

Further, although section 19 of the 1994 Act stipulated that regulations made by the Lord Chancellor may make provision for the supply of copies of documents served on him under section 18(1)(b) to any person on request, there is nothing in sections 18 or 19 of the 1994 Act or in the 1995 Regulations which requires the Public Trustee to keep a record of when the copy was received. On Judge Luba’s analysis, however, that is a crucial date for establishing the termination of the tenancy and the validity of the notice to quit. The evidence before us of the usual practice of the Public Trustee in relation to the recording of the date of applications for registration, which would be accompanied by a copy of the notice to quit, was exiguous. Regulation 3(2) of the 1995 Regulations is quite clear, however, that the only date to be recorded on the register kept by the Public Trustee is “the date on which the entry on the register was made”. Regulation 3(2) provides for an application for registration to be made in Form NL(1). Paragraph 5 of the explanatory notes to that document states that: “The date and description of Notices are requested for office purposes only and will not be entered on the register”. No change to these matters was made by subsequent regulations.

So, the requirement was simply that a copy of the notice to quit must be served upon the Public Trustee before the expiry date of the notice to quit served on the PR or the property.

Appeal allowed and matter remitted to the County Court.