Coventry View

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Posts Tagged ‘s47 notice

Beware of the Notice

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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.

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