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Section 25 notices
Estoppel
Introduction: Service of a s25 notice on an occupier who is a licensee rather than a tenant does not necessarily mean that the landlord is estopped from denying that the Act applies.
Facts: - Licence of a room for business purposes judge held that it was a genuine licence.
R determined the licence.
As solicitor wrote claiming that A had a tenancy denied by R.
24/11/97 A wrote a letter: apparently we have to accept he is holding over under the Landlord and Tenant from 1 October 1997 as a tenant and now do so
Letter enclosed a s25 notice s30(1)(g) and said this gives him a further six months to make [other] arrangements
A applied for new tenancy.
Rs answer did not take the licence point.
Direction was given for preliminary issue re s30(1)(g).
R represented by a director no lawyer judge took the licence point.
Decision:The November letter did not estop R from denying the tenancy.
The November letter did not represent that he would not oppose a new tenancy.
A did not remain in occupation in reliance upon the letter or the s25 notice.
In serving a counternotice and applying to the court as a result of the s25 notice he did not act to his detriment. Citation: The appellant applied for a new tenancy because he wanted a new tenancy. The landlords section 25 notice provided the opportunity to make the application, but it did not, in any sense, encourage the appellant to take that course. It was made clear to him in the notice itself that an application for a new tenancy would be opposed. (Chadwick LJ)
Lesson: Serve a s25 notice without prejudice to contention that the Act does not apply.
Wroe v Exmos Cover Ltd [2000] EWCA Civ 31; [2000] 1 EGLR 66, CA
Inconsistent notices
The landlords solicitors served two inconsistent s25 notices contained in the same envelope. The first letter said that the landlord would oppose under s30 (1) but did not specify a ground. The second said the landlord would not oppose. Neither notice was valid. A third notice served subsequently was therefore valid. Mannai applied.
Barclays Bank plc v Bee [2001] EWCA Civ 1126; [2002] 1 WLR 332.
Prescribed form
The forms
The forms that should be used are now contained in these regulations. There are two main s25 notices.- Form 1; to be used when the landlord does not oppose a new tenancy. The landlord will need to insert his proposals for the new tenancy. The form makes it clear that these are merely proposals for discussion.
- Form 2; to be used when the landlord does oppose a new lease. This is similar to old form in that the landlord is simply required to insert the letter representing the ground in s30 that he will be relying upon.
Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 (SI 2004/1005).
The prescribed information
Section 25 notices with warning notices omitted were not in a form substantially to the like effect. These are important parts of the form. The notice was therefore invalid. Whether T was misled or not was irrelevant.
Sabella Ltd v Montgomery [1998] 1 EGLR 65, CA
Service
The effect of s23 of the Landlord and Tenant Act 1927 (as incorporated by s66 of the 1954 Act)is that where a s25 notice is sent by recorded delivery it is irrebuttably deemed to have been served on the date that the notice was put in the post and not its actual receipt. Section 7 of the Interpretation Act 1978, which generally provides for a presumption that service occurs when the notice would have been delivered in the ordinary course of post, does not apply where s23 applies. (Lex Service plc v Johns [1990] 10 EG 67 disapproved). The effect in the Webber case was that the time for counting the period of 4 months for bringing a claim for a new lease started two days earlier and the application was not made in time. The deprivation of two days out of four months did not breach the European Convention on Human Rights. Lesson: Apply in plenty of time, which should now be much easier given the reforms to Part II of the 1954 Act.
Beanby Estates Ltd v Egg Stores (Stamford Hill) Ltd [2003] EWHC 1252 (Ch); [2003] 1 WLR 2064
CA Webber (Transport) Ltd v Railtrack plc [2003] EWCA Civ 1167; [2004] 14 EG 142; [2004] 1 WLR 320
Article: The service game by Sandi Murdoch An explanation of the cases and a criticism of the rule. (Estates Gazette, 17 January 2004, p99)
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