Landlord and tenant — Housing Act 1988 — Grounds for possession — Landlord and Tenant Act 1987 section 48 — Whether section 48 notice served by notice under section 21 of 1988 Act and by application for possession
The defendant tenant held a flat owned by the
claimant landlord under an assured shorthold tenancy. The landlord brought
proceedings against the tenant for arrears of rent and possession. In the
county court the judge decided that section 48 of the Landlord and Tenant Act
1987, which requires a landlord to serve the tenant with a notice of an address
at which notices may be served, had been satisfied; he also held that ground 11
of Schedule 2 to the Housing Act 1988 had been made out and that it was
reasonable to make an order for possession within section 7(4) of the Act. The
tenant appealed; the landlord relied on a notice under section 21 of the 1988
Act and the application for possession as notices satisfying section 48 of the
1987 Act.
dismissed. The landlord served a notice sufficient for the purposes of section
48 of the Landlord and Tenant Act 1987 when a notice was served under section
21 of the Housing Act 1988 in the form that was used. A notice satisfied
section 48 even if it did not state that the address was one at which notices
could be served. The application for possession did not satisfy the
requirements of a notice under section 48. Ground 11 of Schedule 2 to the 1988
Act was therefore satisfied. There was no basis for interfering with the
decision of the judge that it was reasonable to make the order for possession.
The following cases are
referred to in this report.
Dallhold Estates (UK) Pty Ltd v Lindsey Trading Properties Inc (1994) 70 P&CR 332;
[1994] 1 EGLR 93; [1994] 17 EG 148, CA
Marath v MacGillivray
(1996) 72 P&CR D25; 28 HLR 484; [1996] EGCS 22, CA
Rogan v Woodfield
Building Services Ltd [1995] 1 EGLR 72; [1995] 20 EG 132; (1995) 27 HLR 78,
CA
This was an appeal by the
defendant, Hamid-Zadeh, against a decision of Judge Goldstein in Central London
County Court, who had made an order for possession under the Housing Act 1988
upon the application of the claimant, Ms Drew-Morgan.
Sylvester Carrott (instructed by Christian Fisher
& Co) appeared for the appellant; Arthur Moore (instructed by Jim McKenzie
& Co) represented the respondent.
Giving the judgment of the court, JUDGE LJ said: This litigation
concerns a first-floor flat owned by the plaintiff at 14 Howitt Road, London
NW3, and occupied from 1989 by the defendant as her tenant.
These proceedings by the plaintiff for possession
first began in March 1995, over four years ago. To begin with, the plaintiff
invoked what is known as the accelerated procedure to recover possession under
section 21 of the Housing Act 1988. After the defendant put in her defence, in
February 1996, Judge Hallgarten QC made a possession order in favour of the
plaintiff on the basis that the defendant occupied her flat under an assured
shorthold tenancy and that, before the tenancy was entered into, the plaintiff
had served an appropriate notice under section 20(2). In May 1996 the defendant
was granted leave to appeal the validity of the notice, but the hearing was
adjourned while the defendant put fresh evidence before Judge Hallgarten, in
support of the contention that there should be a complete rehearing of the case.
The judge granted the application and ordered a rehearing.
On 23 June 1997 the plaintiff served a notice
under section 8 of the 1988 Act and subsequently sought possession in fresh
proceedings on the further basis of rent arrears. The original case and the
fresh proceedings were consolidated.
On 13 July 1998 Judge Goldstein, sitting at
Central London County Court, made an order for possession in favour of the
plaintiff on the basis of ground 11 of Schedule 2 to the Housing Act 1988.
Permission to appeal this order was granted by this court.
Four significant issues were raised for resolution
by the judge.
The first was whether the defendant had been
properly served with the notice under section 20. The judge was not so
satisfied. Accordingly, an order for possession could not be made on the basis
of the case sought to be established in the original proceedings.
The second and third issues were linked, and
concerned arrears of rent. The defendant had not always paid the rent as and
when it was due: on the other hand, she had paid a variety of expenses, a few,
but not all of which were held by the judge to be suitable for set-off against
any arrears of rent. After detailed calculation the total found due to the
plaintiff as at 30 June 1998 was £1,698.31. The judge made a number of express
findings to which it will be necessary to return in due course. On the first
day of the hearing itself the defendant paid £2,001, thus giving her an overall
credit of £302.69 by the date of the judgment.
No further issue about the calculation arises on
the appeal.
The third issue was whether, notwithstanding the
persistent delayed payment of rent within ground 11 of Schedule 2, the rent was
‘lawfully due’ at all. It was argued that the plaintiff had failed to comply
with the requirements of section 48(1) of the Landlord and Tenant Act 1987
until after the first day of the trial, by when the arrears of rent had been
paid and the defendant was in credit. The judge rejected this argument.
The fourth and final issue was whether, assuming
ground 11 was established, it was reasonable within section 7(4) of the 1988
Act for a possession order to be made. The judge held that it was.
His decisions in relation to section 48(1) of the
1987 Act and section 7(4) of the 1988 Act arise for consideration in this
appeal. Some short further elaboration of the facts is appropriate.
In view of the judge’s conclusion on the first
issue, possession of the flat was sought on three grounds. The first, ground 8,
fell within Part I of Schedule 2 to the Housing Act 1988 and, if established,
would have left the court without any relevant discretion to refuse to make the
order for possession. This ground however was not established because,
following the late payment of arrears, at the date of the hearing no rent
remained unpaid. If established, the second and third grounds, grounds
10 and 11, provided the court with the power to make an order for possession
if, in accordance with section 7(4) of the 1988 Act, ‘it considered it
reasonable to do so’.
Ground 10 reads:
Some rent lawfully due from the plaintiff —
(a) is unpaid on the date on which the
proceedings for possession are begun; and
(b) …was in arrears at the date of the service of
the notice under that section relating to those proceedings.
Ground 11 reads:
Whether or not any rent is in arrears on the date
on which proceedings for possession are begun, the tenant has persistently
delayed paying rent which has become lawfully due.
The judge found ground 11 proved, and expressed no
conclusion about ground 10. His findings in relation to ground 11 were
expressed in unequivocal terms.
They show undoubtedly… that this was as blatant a
case of persistent non-payment of rent as one could hope to have.
He noted the concession by counsel for the
defendant in his final address that ‘his client has been a persistent non-payer
of the rent’.
There is no appeal against these findings.
The judge, however, had to consider a very late
submission based on the effect of section 48 of the Landlord and Tenant Act
1987. It was common ground that the flat fell within the ambit of section
48(1), which provides:
A landlord of premises to which this Part applies
shall by notice furnish the tenant with an address in England and Wales at
which notices (including notices in proceedings) may be served on him by the
tenant.
The consequences of non-compliance are spelled out
in section 48(2):
any rent or service charge otherwise due from the
tenant to the landlord shall (subject to subsection (3)) be treated for all
purposes as not being due from the tenant to the landlord at any time before
the landlord does comply with that subsection.
In summary, before the notice required by section
48(1) has been furnished to the tenant, whatever the actual state of the
tenant’s account, rent is deemed not to be due, ‘for all purposes’, words that
are unequivocal and comprehensive. Therefore the landlord is not entitled to
recover the rent contractually due under the tenancy nor to succeed in
proceedings that require him to establish that the tenant is in arrears or has
persistently failed to pay the rent. Faced with a submission at the very end of
the hearing in which he had undoubtedly concluded that the defendant’s case lacked
any merit whatsoever, the judge rejected as erroneous the submission that as a
section 48(1) notice had not been served rent was not ‘lawfully due’ for the
purposes of ground 11. He said ‘the rent is lawfully due because contractually
it is due to be paid’.
This conclusion was inconsistent with the clear
statutory language in section 48(1). In my judgment, therefore, it was wrong.
Relief from the consequences of non-compliance
with section 48(1) may be obtained by service of an appropriate notice: see Dallhold
Estates (UK) Pty Ltd v Lindsey Trading Properties Inc [1994] 17 EG
148*. However, until the notice is furnished, the right to rent, and relief on
the basis of non-payment, is in abeyance. The next question in this appeal is
whether an appropriate notice was in fact furnished. In view of his conclusion
it was unnecessary for the judge to make any findings on the topic.
*Also reported at [1994] 1 EGLR 93
The plaintiff submitted that a sufficient notice
for the purposes of section 48(1) was given to the defendant on two separate
occasions: first, in December 1994 when the notice under section 21 of the 1988
Act was properly served on the defendant; and, second, in March 1995 when the
application for possession was made.
The notice under section 21 correctly identified
the name and address of the tenant, together with the name of the landlord and
an address for her ‘c/o 300 Upper Street, Islington, London N1 2TU’. A few
centimetres below, at the bottom of the document, the address is recorded as
the address of the ‘landlord’s agent’, who is named, and whose representative
has signed the document.
The application for possession simply identifies
in the box prepared for this purpose on the left hand side of the document, the
name and address for service and payment. This is immediately beneath a box for
the plaintiff’s full name and address and plainly relates to service in
relation to the instant proceedings on and payment to the plaintiff.
It was submitted on behalf of the defendant that
neither of these documents amounted to a proper notice for the purposes of
section 48(1).
The notice required by section 48(1) is not very
onerous. The tenant must be told of an address in England and Wales at which he
may serve notices on the landlord: no more, no less. Oral notification is
insufficient: the notice must be in writing: see Rogan v Woodfield
Building Services Ltd (1995) 27 HLR 78*.
*Editor’s note: Also reported at [1995] 1 EGLR
72; [1995] 20 EG 132
As Stuart Smith LJ observed at p88:
What the section requires is that the tenant is
told, so that he knows, the landlord’s name and address in England or Wales at
which he can be served with notices. If the name and address is stated in the
lease or tenancy agreement without limitation or qualification, it is a
necessary implication that he… can be communicated with at that address and
hence it is a place to which notices can be sent. The section does not require
that the notice shall state that it is the address at which notices can be served.
The mischief at which the section was aimed was the problem created when the
landlord’s identity was not known and/or the tenant did not know of an address
within the jurisdiction to which notices could be sent and proceedings served…
provided the name and address is communicated to the tenant in writing, which
it is if it is stated in the lease or tenancy agreement, there is no need for a
separate notice.
Each member of the court agreed that the notice
did not have to include words expressly stating that the address was one at
which notices (including notices in proceedings) may be sent. Suggestions to
the contrary based on Dallhold Estates (UK) Pty were rejected. Sir Ralph
Gibson, who had given the leading judgment in Dallhold Estates explained
in Rogan that Dallhold had not decided the question. Stuart Smith
LJ stated that any indication that it had so decided was to be regarded as obiter.
Russell LJ accepted both these qualifications on the decision in Dallhold
Estates and concluded ‘the section does not require that the notice should
contain any indication that the address given is the address at which notices
can be served by the tenant’. This reflected the concluded view of each member
of the court in Rogan.
Consistently with that approach, it was held in Rogan
that compliance with section 48(1) could be achieved by the inclusion of the
landlord’s name and address in the lease or tenancy agreement itself, if it was
so stated without limitation or qualification. By further development, in Marath
v MacGillivray (1996) 28 HLR 484 this court concluded that a notice
served for the purposes of section 20 of the 1988 Act (notwithstanding that it
was not a valid notice for the purposes of section 20 itself, because it was
served after rather than before the ‘assured tenancy’ was entered into)
provided sufficient notice for the purposes of section 48(1). In Marath
the relevant notice said: ‘Signed: R… M… If signed by agent, name and address
of agent: Acting Agent R… M…’ with the address. This notice had been served as
an exhibit to an affidavit by the agent.
The effect of this decision is that a notice
lacking validity for the purpose for which it was sent (section 20 of the 1988
Act) may nevertheless amount to a sufficient notice for the purposes of section
48(1). It is not required to repeat the precise words of the section. It may be
served as an exhibit to an affidavit.
It is now possible to consider the two documents
relied upon by the plaintiff as notice for the purpose of section 48(1).
The document served in compliance with section 21
informed the tenant of the name and address of the landlord’s agent, without
limitation or qualification. It was not served for the purposes of section
48(1) nor did it state that the address was the one at which ‘notices
(including notices in proceedings) may be served’ on the landlord. So far as
section 48(1) is concerned, these omissions are irrelevant.
In my judgment, in accordance with the authorities
and the reasoning on which the decisions in Rogan and Marath were
based, the landlord furnished a notice sufficient for the purposes of section
48(1) when the notice under section 21 of the 1988 Act was served on the
defendant in the form that was used in this case.
I shall therefore deal briefly with whether or not
the application for possession (described in argument as the summons)
constituted another such notice. In my judgment, it did not. The name and
address given in the box was provided, according to the document itself, for
the purposes of ‘service and payment’. That means, for service of any documents
in connection with the proceedings themselves, rather than generally, together
with payment of any rent allegedly due. This was a significant limitation or
qualification. In any event, experience shows that solicitors identified for
the purposes of an individual piece of litigation are not necessarily the
landlord’s agents for litigation purposes generally, nor indeed that it follows
from their retainer for litigation purposes that they are agents for all other
purposes as well. It was suggested that the decision in Marath involved
approval as a sufficient notice for the purposes of section 48(1) of a fixed
date summons in an application for possession. I disagree. Although Sir Iain
Glidewell ended his judgment by upholding ‘the arguments… advanced in his
counter notice’, this particular document was not considered at all in the
course of his judgment, and the conclusion expressed at the end of it plainly
reflected and related to the detailed arguments he had considered, rather than
one to which there was no more than a passing reference in the respondent’s
notice. Without suggesting that a suitably worded summons may never be amended,
or served with another document, which removes the limitation or qualification
to be found in the present summons, this particular summons was not sufficient
for the purposes of section 48(1).
Accordingly, although not for the precise reasons
given by the judge, ground 11 of Schedule 2 to the 1988 Act was established by
the plaintiff.
It was then necessary for the judge to consider
whether it was reasonable to make the order. The attack on his conclusion was
not very promising. This court would not interfere with it unless plainly
wrong. I do not consider that such decision should be set aside because the
judge did not spell out each and every fact of the case, nor should it be
assumed that because he has not expressly referred to any fact he must have
been ignorant of or ignored it.
The judge had found not that there was some
relatively insignificant non-payment of rent brought about by some
unanticipated event in the tenant’s personal life, which would serve to explain
the persistent breaches of tenancy, but rather that the persistent non-payment
was ‘blatant’ and, although this was not his word, inexcusable, because
throughout the tenancy the defendant was in receipt of housing benefit for the
precise purpose of enabling her to pay the rent. The extent of the breach and
whether, as here, it was plainly deliberate, and avoidable, were both relevant
factors for the consideration of the judge. Mr Sylvester Carrott suggested that
the defendant had ceased to be in arrears by the date of the hearing at the
time when the judge was considering whether it was reasonable to make an order
for possession but, in the context of the present case, that is not of much
assistance to her. It rather tended to underline that the defendant was in a
position to pay and had chosen not to do so until the very last moment. As to
the credits to which she was entitled, the judge rejected many of the items
that she claimed, and in the end, by the final calculation, the credits came
nowhere near cancelling the constant running debts.
The judge was also criticised for taking into
account the defendant’s conduct, over and above her blatant and inexcusable
failure to pay rent. He found that she had made a number of false allegations,
including an allegation of forgery against the plaintiff’s agent in connection
with one of the early tenancy agreements, together with untrue assertions that
the plaintiff had authorised her to spend sums on her behalf, and generally
that she was a most unsatisfactory tenant. These too were features of this
particular case that the judge was entitled to take into account to found his
overall view that it would be unjust to expose the landlord to the defendant as
a continuing tenant. There was further criticism that the judge had taken into
account the defendant’s knowledge from the outset that the tenancy was not
intended to give her permanent rights, but, again, I am unable to understand
why the fact that the defendant was aware at the outset of the tenancy that it
was not intended that she should have long or permanent rights was entirely
irrelevant.
I accept that the judgment does not expressly
refer to the fact that the defendant was a lone parent. I do not for one moment
accept that the judge did not recognise this factor in reaching his conclusion,
and he certainly was aware that she was dependent on state benefits, a feature
that he expressly took into account, although, for the reasons already
explained, not to the advantage of the defendant.
Given the facts found by the judge, in my
judgment, his conclusion on this part of the case was right. Certainly no basis
for interfering with it has been shown.
In a final submission Mr Carrott suggested that
the judge should have considered whether justice could have been achieved in
this particular case by a suspended order for possession. No one invited the
judge to consider making any such order at trial. No justifiable basis for
making such an order has been shown.
In my judgment, this appeal should be dismissed.
MAY LJ agreed and did not add anything.
Appeal dismissed.