Notices - service
Death of the tenant
Service on the public trustee - s18 of the 1994 Act
Gateway Housing Association v Ali (Deceased)
 EWCA Civ 1339
The Court interpreted s18 of the Law of Property (Miscellaneous Provisions) Act 1994, which sets out a procedure for termination of a periodic tenancy following the death of a tenant and before probate or letters of administration have been granted.
The operative document was the original Notice to Quit served under s18(1)(a), the expiry of which was calculated by the reference to that notice (and not the copy served on the Public Trustee). So long as the copy was served on the Public Trustee before the date when the original expired, the original was valid to determine the tenancy.
On 4 May 1998 Gateway Housing Association (then called by a different name), a registered provider of social housing, granted Mr Ali and his wife a joint assured tenancy of a property in London. Following the death of Mr Ali’s wife on 15 March 2014, Mr Ali became the sole tenant of that property. Mr Ali himself subsequently died on 10 August 2018.
The property remained occupied by, among others, Ms Begum (the second respondent) who claimed to have married Mr Ali in Bangladesh in 1990.
Gateway therefore served a Notice to Quit by first class post on the property on 15 October 2018. It was addressed to “The Personal Representatives of Mr Nuruj Ali”. Deemed service was therefore on 17 October 2018, and the notice expired on 18 November 2018.
Gateway also sent a copy of the Notice to Quit on the Public Trustee on 18 October 2018 by first class post. However, the Public Trustee stated that the application to register the notice was received on 30 October 2018. In those circumstances, that copy notice was to expire on 2 December 2018.
Proceedings for possession of the property were issued on 21 January 2019. Ms Begum raised several defences including that the notice to quit was invalid for lack of clarity, there being different dates on which the Notice to Quit and the copy served on the Public Trustee were to expire.
The case turned on the proper construction of s18 of the Law of Property (Miscellaneous Provisions) Act 1994, and the correct procedure for terminating a periodic tenancy following the death of the tenant but before probate or letters of administration have been granted.
There was another issue as to the effect of a clause in Mr Ali’s tenancy permitting notices to be served on Mr Ali at the property, and it was submitted that that still had effect notwithstanding death. However, it fell away on appeal as it was accepted Mr Ali died intestate and therefore the Notice to Quit was not properly addressed to the tenant (there being no personal representatives appointed and no one in whom the tenancy had vested).
The Deputy District Judge Smith dismissed the possession claim. He relied on a decision of HHJ Luba QC in Pavey v London Borough of Hackney (unreported) 21 November 2017 and found that, as the Notice to Quit and the copy expired at different times, they were invalid for uncertainty and could not terminate the tenancy. There must be certainty for both the tenant and the Public Trustee as to when the notices expired, but it was not ascertainable from either as to when the notice served on the other expired. This was notwithstanding certain county court decisions that had refused to follow the reasoning of HHJ Luba QC.
Decision on appeal
The appeal was made directly to the Court Appeal, who unanimously allowed the appeal.
The operative document was the Notice to Quit, and it was important to note that the document served on the Public Trustee was only a copy. HHJ Luba QC was therefore incorrect in Pavey implicitly to recognise that the copy had the same contractual effect as the original notice. Only limited information was required to be recorded on the register maintained by the Public Trustee, which undermined the importance placed on the copy by both HHJ Luba QC and the Deputy District Judge. It was sufficient for anyone looking at the register to know that such a notice had been served, and it was not necessary for the date on which it expired to be ascertainable. This could be discovered by separate further enquiries.
This was the more workable interpretation of s18 of the of the Law of Property (Miscellaneous Provisions) Act 1994, as the Judge’s analysis in Pavey lead to unnecessary difficulties and risk placed on the landlord in what was meant to be a provision to enable a landlord to recover possession in difficult circumstances.
So long as the notice served on the Public Trustee was served before the expiration of the original Notice to Quit, then it was valid. It was not correct that the copy notice could be served at any time after the original and thereby retrospectively validate a notice that could have expired. As the copy notice in this case had been received prior to the expiration of the original, then the Defence that the notices were valid for lack of clarity failed.
The matter was however remitted back to the Deputy District Judge to determine the other defences that had been raised by Ms Begum.
This decision is notable for two main reasons. First, the Court of Appeal have taken the chance to explain the mechanics of a specific statutory provision and in the process overturned a decision of HHJ Luba QC (one of the most respected housing lawyers in the country). This provides welcome clarity for practitioners, landlords and tenants alike.
The decision is also important beyond the realms of housing law, as the effect of s18 of the Law of Property (Miscellaneous Provisions) Act 1994 is not limited to Notices to Quit. This was recognised by the Court of Appeal at paragraph 52 of its decision (although argument was not heard on the point), who reiterated that the section applies to any notice affecting land. This is particularly relevant where the service of certain notices set down specific time limits for the recipient to respond, such as in business lease renewals, enfranchisement, rent reviews and under compulsory purchase legislation.
Service of notice to quit by purchaser "landlord"
 EWHC 2454 (Ch)
A notice to quit can only be served by the landlord at law. Where the reversion has recently been purchased, registration at the Land Registry must be completed before the purchaser can serve such the notice.
P had a yearly periodic tenancy of agricultural land. His landlord, S, sold a small part of the land to a third party. Before the third party was registered at the Land Registry as proprietor of the land, the third party served a notice to quit on P under the Agricultural Holdings Act 1986. S served a separate notice to quit at the same time.
The judge held that each of the notices was invalid. The notice served by the third party had not been served by the landlord at law. The notice served by S was also invalid because notice to quit had not been given in relation to all the land comprised in the holding (as required by the 1986 Act). Both landlords appealed to the High Court.
Decision on appeal
The High Court dismissed the appeals. The Court followed decisions in previous case law. This included Brown and Root v Sun Alliance (2001) Ch 733, where it was held that the tenant remained able to exercise a personal break option because the assignment of the lease had not been registered. Further in Renshaw v Magnet (2008) 1 EGLR 42 it was held that the new landlord was unable to respond to the tenants’ collective enfranchisement notice because registration of the new landlord as proprietor of the land at the Land Registry had not been completed. Norris J at para 25:
- "This is a well-established and coherent body of law in support of the proposition that where a legal right to bring a tenancy to an end by notice to the tenant is being exercised, then it is the person in whom the reversionary estate is vested who must give the notice."
Norris J, commenting on the argument that the court should avoid an overly formalistic approach which magnified the risk arising from the "registration gap", also said:
- "The time will come when every completion pack for the sale of a reversion includes a document in appropriate form constituting the transferee the agent of the transferor in respect of all matters concerning the estate transferred pending registration, a copy of which will be provided by the landlord to the tenant along with notice of the assignment."
This comment raises an important point for practitioners. On every occasion when acting on the purchase of land subject to one or more leases, the buyer’s solicitor should ensure that the buyer has the right to act as the agent of the seller where necessary, pending registration of the transfer.
Section 196 of the LPA 1925
 EWCA Civ 573
This case related to a building severely damaged by the IRA bomb in Manchester in 1996. L served a notice operating a break clause and a s25 notice. The lease imported s196 of the 1925 Act. The notices were served by attaching them to the building and by recorded delivery to the demised premises and to other addresses that L had for the tenant. Each of the posted notices was returned and T stated that he was unable to obtain access to the property at any relevant time because of security measures. None of the notices therefore came to his attention.
The notices were validly served. There might be circumstances where a notice was not served in good faith in which case the landlord would not be able to rely upon s196 or s23 of the 1927 Act in relation to the s25 notice. However, this was not one of those cases. The case contains an extensive review of the authorities and is worth full consideration. The reasoning behind the statutory provisions was explained by Robert Walker LJ at para 28:
- "I accept that one of the purposes of these provisions is to establish a fair allocation of the risks of any failure of communication. The other main purpose is to avoid disputes on issues of fact (especially as to whether a letter went astray in the post or was accidentally lost, destroyed or overlooked after delivery to the premises of the intended recipient) where the true facts are likely to be unknown to the person giving the notice, and difficult for the court to ascertain."
WX Investments Ltd v Begg
 EWHC 925 (Ch);  1 WLR 2849;  50 EG 115;  L&TR 39.
T sent a counter-notice, to a rent review notice, by recorded delivery in accordance with a lease that incorporated s196(4) of the 1925 Act which provides for delivery "in the ordinary course of post" to be a deemed delivery . L was out and the postman left a P739 while you were out card. L then requested delivery to take place a few days later.
The delivery was deemed to take effect the day after the counter-notice was posted not actual date of delivery - and so was in time. Section 196(4) is a deeming provision and is not to be frustrated by intended recipient being out at the time of attempted delivery. The whole point of a deeming provision is that the document is deemed to be delivered whether or not it is actually delivered.
Service on company
 EWCA Civ 1368
Personal delivery of a notice can be effected against a company by giving to someone with authority to receive it. Delivery to a receptionist who expressly stated that she would make sure it was passed onto a director was sufficient. Citation Peter Gibson LJ
- "46. Cl. 19 provides for two modes of serving notices on a party: by delivery personally or by sending by prepaid recorded delivery post to the party's address set out in the Agreement. We are not concerned with sending by post. There is nothing in cl. 19 to require that the personal delivery to a party which is a company has to be at the company's registered office, still less anything to suggest that personal delivery can be effected merely by leaving the document in question somewhere in the building which is the registered office. That gives no meaning to "personally".
- 47. The judge went on to say that service at the registered office by leaving it with the receptionist was sufficient. Apart from the superfluous reference to the registered office, on the particular facts that conclusion is in my judgment correct. I agree with Mr. Glick when he says that personal delivery of a notice to a company is effected by delivering the notice to somebody authorised to receive it. I disagree with him when he says that the only person to have such authority is somebody in a senior position in the company. The function of a receptionist ordinarily is to receive people visiting, and letters or parcels being delivered to, the employer of the receptionist. In the present case there was in evidence the witness statement of the process server, Mr. Greenman, who delivered the December notice to the receptionist; that was accepted on the receptionist's express assurance that it would come to the attention of a director. As the judge pointed out, the Defendants did not adduce any evidence as to what happened to the December notice after it was left with the receptionist. It is to be inferred that it did come to the attention of a director. In my judgment, the December notice was delivered personally to Venson."