Coventry View

A litigation lawyer's perspective

Posts Tagged ‘boring

Notice the Notice

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From time to time there is a decision from a court or tribunal that shows you

  • how complicated housing/L&T law has become; and
  • the dangers of letting the court/tribunal getting bored.

What happens is that the judge or chairman stops listening to the advocate rambling on about his case and flicks through the paperwork in the bundle, and comes upon a legal quirk that they hadn’t noticed before. They take it away over lunch and look things up in the books to hand, not because it really matters in the case in question, but because asking awkward questions was why they got to the bench in the first place, and there is nothing that they like more than putting a boring advocate on the spot.

The result is usually amusing, because the questioner has only looked at a small piece of a big problem,  the advocate hasn’t thought about this point at all previously, having thought that it was a non-issue, and gives an answer on the hoof that they wouldn’t if they had prepared for things properly, and strange things happen.

This is what happened in Beitov Properties v Elliston Martin [2012] UKUT 133 (LC)  recently. The LVT were listening to an argument about the reasonableness of some service charges, which was more boring than usual because the tenant hadn’t attended, and so the chairman flicked through the bundle, found the demand for payment, noticed that it gave the landlord’s name but the managing agent’s address and asked the landlord’s solicitor if this was allowed.

The problem is s47 Landlord & Tenant Act 1987 which applies to all residential tenancies that aren’t business tenancies under Part II LTA 1954. This requires all written demands for rent or other payments to contain the landlord’s name and address, plus an address for service in England and Wales if the address given is elsewhere. The bite is in s47(2):

“Where

-a) a tenant of such premises is given such a demand, but

b)  it does not contain any information required…

then…any part of the amount demanded which consists of a service charge…shall be treated for all purposes as not being due from the tenant to the landlord at any time before that information is furnished by the landlord by notice given to the tenant.”

Note that  the info is needed for all demands, including rent, but if you don’t have it in a demand for service charges the charge isn’t due until the info is given, while it doesn’t affect the liability for rent (presumably because you don’t normally have to demand rent, but do have to demand service charges).

The LVT decided that the section meant what it said, and that the agent’s address wasn’t the landlord’s address and so the demand was invalid. The address given should have been the landlord’s trading address, or one of their trading addresses, or their registered office. So the service charge element wasn’t due. And the Upper Tribunal agreed, albeit with some comments to the Tribunal on springing this sort of thing on a party.

The obligation in s47 is quite separate to the obligation in s48 to provide a tenant of residential premises with a notice in writing of an address for service in England and Wales of any notices. This goes on to say that rent and service charges are not due until this has been complied with. The UT commented that “an address for service” is different from ” the name and address ” and unless it was there would be no point in having both s47 and s48. In this case there was a valid s48 notice giving the agent’s address, but it didn’t do the landlord any good.

There are two lessons to learn from this:

  1. Don’t let tribunals get bored; and
  2. Make sure you give the landlord’s name and address on all demands for rent, service charges, or other payments. You can give the agent’s address as well, but you can’t give it instead.

And all managing agents, and landlords ought to be checking their procedure on this right away, as no doubt tenants’ advisers will be taking this point until the novelty runs out.

Written by Coventry Man

16/05/2012 at 12:13