Elizabeth Dwomoh revisits the question of whether section 8 notices and confirmatory certificates are only valid if executed by corporate landlords in accordance with the Companies Act 2006.
Key point
- A section 8 notice and a confirmatory certificate given to a residential tenant are not required to be executed by a corporate landlord in accordance with section 44 of the Companies Act 2006
A document can be executed in accordance with section 44 of the Companies Act 2006 if it is signed on behalf of a company by two authorised signatories or by a director in the presence of a witness who attests the signature. In Northwood (Solihull) Ltd v Fearn and others [2022] EWCA Civ 40; [2022] PLSCS 18, an issue arose as to whether a notice served under section 8 of the Housing Act 1988 and a confirmatory certificate given to a tenant under section 213 of the Housing Act 2004 was invalid if the corporate landlord failed to authenticate the document in the manner required by section 44.
The signatures
Northwood Solihull Ltd granted Vicky Cooke and Darren Fearn an assured shorthold tenancy. Fearn and Cooke paid Northwood a tenancy deposit that was protected in an authorised scheme.
Pursuant to section 213 of the 2004 Act, Northwood was required to give Fearn and Cooke “prescribed information”. Under section 213(5) of the 2004 Act, the “prescribed information” had to be given in a “prescribed form” or in a “form substantially to the same effect”. Article 2 of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 mandated the form and content of the prescribed information. Article 2 was retrospectively amended by the Deregulation Act 2015 and required the landlord to sign a certificate. The certificate given to Cooke and Fearn was signed by a director of Northwood.
Cooke and Fearn fell into rent arrears and Northwood served them with a section 8 notice. The section 8 notice was signed on behalf of Northwood by its property manager. Unfortunately, instead of deleting the word “landlord” the property manager deleted the words “landlord’s agent” on the section 8 notice.
Cooke and Fearn defended the possession claim and counterclaimed for a penalty under section 214 of the 2004 Act. They argued that the signatures on both the certificate and the section 8 notice failed to comply with section 44 of the 2006 Act and were therefore invalid.
The decision and first appeal
Northwood succeeded in its claim for possession. The trial judge found that a landlord was not expressly required to sign a section 8 notice under the 1988 Act.
Cooke and Fearn succeeded on their counterclaim. The court held that the 2007 Order expressly required a certificate to be signed by the landlord and therefore a company could only execute the same by signing in accordance with section 44 of the 2006 Act.
The decision of the court was upheld on appeal and cross appeal to the High Court. Relying on Hilmi & Associates Ltd v 20 Pembridge Villas Freehold Ltd [2010] EWCA Civ 314; [2010] 2 EGLR 41, Saini J accepted the general proposition that a company could only execute a document in accordance with section 44 of the 2006 Act if a statute and the context required that it must be signed by a relevant person. Compliance was a “binary matter”. Northwood had not complied. The certificate could not be saved by arguing that it was substantially to the same effect.
The parties appealed and cross appealed.
Compliance
In determining if the certificate was valid or not, the Court of Appeal distinguished Hilmi from the present case. As a general rule, a person was treated as having signed a document if it was signed on his behalf and with his authority. Hilmi concerned a statute that exceptionally required a persona signature and excluded performance by an agent. The legislation under consideration in Hilmi did not include any equivalent to section 212(9) of the 2004 Act or article 2(3) of the 2007 Order, both of which expressly envisaged actions being carried out by agents.
In considering whether there had been compliance with statutory requirements, the Court of Appeal found that the starting point was consideration of the terms of the statute and what it required. The next step was to consider if the document in issue satisfied those requirements.
The certificate was signed in 2014. At the material time, section 212(9) of the 2004 Act extended the definition of “the landlord” to include a person acting on behalf of the landlord in relation to the tenancy. The 2015 Act amended the 2004 Act by disapplying section 212(9). This led to the unpalatable result that the certificate, which had been valid because it was signed by a director on behalf of the company, was subsequently invalidated by the retrospective amendment made by the 2015 Act. The validity of Northwood’s certificate was saved, however, because article 2(3) of the 2007 Order still permitted “the landlord” to be read as including a person acting on the landlord’s behalf.
The section 8 notice too was found to be valid. A landlord complied with section 8 of the 1988 Act if an agent served a notice on its behalf, even if the agent signed the notice in the landlord’s name. In addition, the form prescribed by the relevant regulations explicitly allowed a notice to be given by and signed by an agent for the landlord. The inadvertent deletion of the phrase “landlord” by the property manager did not invalidate the notice.
Elizabeth Dwomoh is a barrister at Lamb Chambers
