Beware of the Notice

Landlords have to know about all sorts of notices if they are going to be able to manage their properties effectively. I haven’t had time to even try to find them all, but even a brief search turns up a surprising number.

s47 L&TA 87 – Notice of the Name and Address of the landlord, which must be given on all demands for rent or other monies due under the lease, together with an address for service in England and Wales if the address is otherwise abroad. The notice can of course be given by their agent, who can give their details as well but not instead of the landlord’s. This is where the landlord in Beitov Properties v Elliston Martin [2012] UKUT 133 (LC) came unstuck. Until the details are given any monies other than rent that are claimed are not legally due.

s48 L&TA 87 – Address for service in England and Wales of any notices to the landlord, which must be given to the tenant before any monies including rent are due. Doesn’t have to be landlord’s true address (as in s47) and can be the agent’s address – and normally is. This, like s 47, applies to all residential tenancies that are not business tenancies.

s153 C&LRA 02 – Notice in prescribed form (including size of print – no smaller than 10 point) of tenant’s rights in relation to service charges, and which must be delivered with any demand for service charges, otherwise they are not due. There is a similar notice (although with slightly different prescribed wording) which must be delivered with any demand for administrative charges, such as a demand for the costs. This applies to all long residential leases.

s146 LPA 25 –Notice warning of threat of forfeiture. The most famous of the notices, certainly the statutory ones. Applies to all tenancies where the landlord is seeking to enforce a right of re-entry or forfeiture because of the breach of a term of the lease, other than to pay rent. Must inform the tenant of the alleged breach, require it to be remedies within a reasonable time if it is capable of remedy, and require compensation for the breach. Can’t be served in long residential leases unless the matter complained of is admitted, or determined by a court or the LVT beforehand.

s8 HA 88 – Notice Seeking Possession. The necessary first step to recover possession of an Assured Tenancy, including an Assured Shorthold Tenancy. Has to specify the breach and also set out in full the ground under Sch 2 that is being relied upon, and if more than one, all of them. It also has to give the date after which the proceedings may be issued, and it runs for 12 months, so you can rely on an old notice provided that they still apply.

s21 HA 88 – Notice Requiring Possession. Not to be confused with the above. 2 months’ notice ending on the end of a rental period means that the court must grant possession on an AST provided everything is in order. Date for notice crucial – note a tenancy that runs from the 1st of the month ends on the 31st (or whatever) of the month, and that is the date that must be given. There is a different form if the notice is served during any fixed term. And the notice is invalid if the tenant’s deposit hasn’t been properly protected and the appropriate notices etc haven’t been served in time  – ie within 30 days of the deposit being received.

And finally the Notice to Quit – which is a creature of common law and the oldest by a long way. It brings a periodic tenancy to an end, provided that it isn’t an assured or secure one, or a business tenancy protected by Part II of the Landlord and Tenant Act 1954 (which has its own forms of notices). The most common reason for serving one is to terminate a periodic assured tenancy where the tenant is no longer living in the property as their principal dwelling house, and so it is no longer assured.

There is one common thread to all these notices: they have to be served on the tenant. And then the landlord has to be able to prove that they have done so. Most tenants will deny receiving them, so just sticking them in the post is not a good idea on the whole. The best way is personal service, with a signed acknowledgement, failing which with a witness or a professional server. However, a well-drawn lease will include the deemed service provisions from s23 L&TA 1927 that allows a notice sent by Recorded Delivery to the tenant’s last know place of abode in England and Wales to be good service on posting, as decided by the ChD in Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd.

Not the most exciting topic, I’m sure you’ll agree. But an important one.

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All Change for Deposits

Now readers are a pretty select bunch, and will know that there is an important change to the rules on protecting deposits for Assured Shorthold Tenancies coming into effect on 6th April 2012.  They will also know that in many ways the changes are about restoring things to the position that the legislators thought they were when they enacted the current rules in the Housing Act 2004. But it is an important change that will no doubt catch various people unawares, so it does no harm to set it out again.

The theory is unchanged: deposits paid by AST tenants have to be protected by putting them into a scheme that will

  • pay up if the landlord does a runner, or goes bust, and
  • provides an adjudication process to deal with arguments about deductions for damage etc.

The problem was that the method the government used to make sure that landlords actually did this, rather than using the deposit money as working capital (or the holiday in the Bahamas fund) as they did previously, was not only to stop a defaulting landlord serving a s21 notice, but also to allow tenants to claim draconian penalties of three times the deposit for even trivial failures, and this caused landlords and their lawyers to be inventive and persistent. The result was a series of cases that ruled that a landlord was not at risk of penalties if he protected the deposit by the day of the court hearing (Tiensia v Vision Enterprises) or if the tenancy had ended (Gladehurst v Hashemi). As it takes a remarkably stupid landlord not to notice the first of these, and most claims arise in practice after the tenant moves out and wants his deposit back, this rather ruined the scheme. Other commentators used much more colourful language.

So here’s the legislator’s second attempt. The key changes are:

  • Landlords have 30 days to protect the deposits instead of 14 days as before,
  • Courts have a discretion to pay between one and three times the deposit as a penalty,
  • If the deposit is not protected in time late protection won’t stop the penalty, and won’t let the landlord serve a s21 notice until he repays the deposit, or concludes the tenant’s court action,
  • Ex-tenants can make claims unless their deposits have been returned to them.

Note the rules apply to ALL ASTs that are in force on 6th April, so if a deposit (paid since 2007) has not been protected by then the landlord has until 6th May to sort things out.

I think that the thinking is that if you provide a more reasonable scheme then landlords won’t try so hard to get round it. Time will tell it this is right.

This is just a flag so you know you’re entering a minefield. If you or your clients merely want to operate things then get in touch with one of the Deposit Protection Schemes and they will provide all the notices etc that they need.

If you want lots of detailed advice then look on The Landlord Law Blog written by Tessa Shepperson http://www.landlordlawblog.co.uk  who is helpfully running lots of articles about this for the next week or so. Or go to Nearly Legal  http://nearlylegal.co.uk/blog/ who will analyse the law into fancy shapes in a thoroughly understandable way.