|
|
Section 20 Notices
Introduction
There is nothing like a bit of history to bring out the big guns. Prior to 28 February 1997 a landlord wishing to create an assured shorthold tenancy was required to serve a notice under s20 of the Housing Act 1988 before the tenancy was entered into. If the notice was not properly served the tenancy could not be an assured shorthold. It became an ordinary assured tenancy. The problem is that whenever legislation requires service of a notice mistakes are bound to be made. Indeed, many mistakes were made in respect of s20 notices and many junior barristers paid for their holidays by challenging them in possession claims.
Perhaps the most common problem was the inability of the landlord in many cases to prove that he served the s20 notice prior to the grant of the tenancy. However, there were also many mistakes made in the format of the notices. This is what occurred in three cases decided by the Court of Appeal in December 2001: Ravenseft Properties Ltd v Hall, White v Chubb and Kasser v Freeman. Although not all heard together one judgment was given in respect of all three cases: Ravenseft Properties Ltd v Hall; White v Chubb; Kasser v Freeman [2001] EWCA Civ 2034;[2002] 11 EG 156
I refer to the cases as being of historical interest because since 28 February 1997 it has not been necessary to serve a s20 notice for the tenancy to be a shorthold. I refer to big guns because four leading landlord and tenant QCs were involved in the appeals.
Prescribed form
Section 20 of the 1988 Act required the notice to be in such form as may be prescribed. The regulations creating the prescribed form were the Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1988 (as amended). The relevant form was Form No. 7. However, regulation 2 stated that the form to be used was no.7 or a form that was substantially to the same effect.
What went wrong?
The mistake in each case was as follows:Ravenseft v Hall: The tenancy agreement was dated 27 August 1996 and was for a term commencing on 24 June 1996 and expiring on 23 June 2000. The s20 notice was served on 31 July 1996. Unfortunately, the notice stated that the tenancy was to commence on 24 June 1996. This was wrong because although the term was calculated from 24 June, it did not actually begin until 27 August. A tenancy cannot start before it is created (Roberts v Church Commissioners for England [1972] Ch 278 at 285B-D, per Stamp LJ).
White v Chubb: The term was for six months commencing on 1 October 1993. There was an error in the end date for the tenancy in the s20 notice, in that it stated that the tenancy would end on 1 May 1994, whereas in fact it should have stated 1 April 1994.
Kasser v Freeman: There were two errors in the wording of the notice. One was a mistake in relation to the powers of the rent assessment committee. The second made mistakes in relation to the position of persons who previously had other tenancies. In each case the tenants argued that the form served was not the form that was required by the regulations and was not substantially to the same effect.
Previous authorities
There were two in particular. In York v Casey [1998] 2 EGLR 25 the Court of Appeal held that the objective test set out in the House of Lords case of Mannai v Eagle Star (1997) applied where the s20 notice contained an error such as a wrong date. More particularly in York v Casey Peter Gibson LJ stated that:"What the court must do is to see whether the error in the notice was obvious or evident and second, whether, notwithstanding that error, the notice read in its context is sufficiently clear to leave a reasonable recipient in no reasonable doubt as to the terms of the notice." As will be seen below this approach has now been rejected.
In Manel v Memon [2000] 2 EGLR 40 Nourse LJ had discussed the purpose of a s20 notice:"Its essential purpose is to tell the proposed tenant that the tenancy is to be an assured shorthold tenancy, with the consequences specified in paras 2 and 3 of the Form 7, in particular that the landlord may have the right to repossession if he wants."
Test to be applied
In Ravenseft counsel argued the case by comparing the facts in that case with those in the earlier cases such as York v Casey. However, the Court of Appeal rejected that approach. A detailed analysis of earlier cases and a comparison with the form in the particular case:"...is not a profitable exercise: The question whether a notice under s20 is in the prescribed form or is in a form substantially to the same effect is a question of fact and degree in each case, turning on a comparison between the prescribed form .. and the particular form of notice given. The resolution of that question is not a decision on a point of law which is binding on later courts." (Mummery LJ, para 11). The Court of Appeal rejected the York v Casey approach. Adopting the principle stated in Mamel v Memon, Mummery LJ said this:"I do not read the authorities as laying down a two-stage test which can only be operated when the error is obvious. The question is simply whether, notwithstanding any errors or omissions, the notice is substantially to the same effect in accomplishing the statutory purpose of telling the proposed tenant of the special nature of an assured shorthold tenancy." (Para. 27). Lord Phillips, the Master of the Rolls, phrased the question slightly differently. He said that an issue may arise as to whether the tenancy is that to which the notice relates and that:"The test to be applied when answering that question is whether, having regard to the particulars of the tenancy in the notice, and to all the relevant surrounding circumstances, the tenant should reasonably have concluded when he entered into the tenancy that the notice he had received related to it." (Para. 56). Lord Justice Tuckey referred to this slight difference of emphasis:"Mummery LJ reaches this result by asking the question whether the notice was in a form substantially to the same effect as the prescribed form having regard to its statutory objective. The Master of the Rolls reaches this result by asking whether the tenant should reasonably have concluded that the notice that he had received related to the tenancy which he entered into. I think it is likely that the result will be the same whichever question one asks, as this case shows. But, if I have to choose, I think I prefer Mummery LJs question since it mirrors the language of the statute. There is no difference of approach between Mummery LJ and the Master of the Rolls." (Para. 46). Cases on other statutory provisions were not referred to in the judgment. However, there are of course similar provisions to be found in other areas of landlord and tenant law. For example, a notice served under s25 of the Landlord and Tenant Act 1925 where a similar approach is adopted (see Sabella Ltd v Montgomery [1998] 1 EGLR 65, CA).
Effect in each case
Thus, the mistakes in the three cases were really of no importance. The errors as to the start date (Ravenseft), the end date (White) and in the notes on the form (Kasser) did not prevent each of the notices from fulfilling the essential function that they were meant to fulfil to tell the proposed tenant of the special nature of an assured shorthold tenancy (para 27). The notices in the cases were held to be valid and the landlords were entitled to possession
A subsequent case
In B Osborn & Co. Ltd v Dior [2003] EWCA Civ 281; [2003] 05 EG 144 (CS)
there were two cases in which the tenants challenged validity of the notices. In the first L had omitted her name and address from the relevant box. In each case the name and address of L's agent was given instead of L's. It was held that both notices were "substantially to the same effect" as that required by the regulations.
Service of s20 notice on agent of T
Section 20(2)(b) states that the notice must be served on the person who is to be the tenant under that tenancy. In Naidu v Yenula Properties Ltd [2002] EWCA Civ 719; [2002] 42 EG 162; [2003] HLR 18. Ts conveyancer, as his agent, was served with a s20 notice. It was held that the conveyancer had actual authority to accept service and that service on an agent was sufficient to comply with the section. The tenancy was therefore a shorthold.
Back to top
|
|
|