Landlord and tenant — Leasehold Reform, Housing and Urban Development Act 1993 — Section 42 notice — Whether notice valid — Whether notice invalid if signed by agents for tenant — Whether court has jurisdiction to consider validity of notices
The respondent
tenant served a notice dated January 7 1997 on the applicant landlords under
section 42 of the Leasehold Reform, Housing and Urban Development Act 1993,
seeking to exercise the right to acquire a new lease of a flat. That notice was
signed by the solicitors acting on behalf of the tenant, and specified the date
of March 7 by which the landlords should respond to the notice. It was received
on January 8. On January 8 the landlords’ solicitors contended that it was
invalid on the grounds that: (1) it did not comply with section 42(5), the
specified date being less than two months after the date of the giving of the
tenant’s notice; (2) the notice was defective since it had been signed by the
tenant’s solicitors not the tenant, contrary to section 99(5). In May 1997 the
tenant attempted to cure any defect by personally signing a document in the
form of the January 7 notice and dating it January 1.
did not give the appropriate time for the landlords’ response. The landlords
did not waive the invalidity of the notice in respect of the date, and the
second notice was given when the right to acquire no longer existed so did not
work as the giving of a valid notice on January 7. The court has jurisdiction
to determine procedural regularities; whether a notice is valid or not is
determined under section 90. (2) The distinction between paras (a) and (b) of
section 99(5) are so stark that the only conclusion that can be reached in
accordance with the ordinary canons of construction is that a notice under
section 42 cannot be signed on behalf of the tenant.
The following
cases are referred to in this report.
Mutual
Place Property Management Ltd v Blaquiere [1996]
2 EGLR 78; [1996] 28 EG 143
Tennant v London County Council (1957) 121 JP 428; 55 LGR 421; 169
EG 689, CA
Viscount
Chelsea v Morris [1997] 2 EGLR 100; [1997]
46 EG 159
This was an
application by Charles Gerald John Cadogan Viscount Chelsea and Cadogan Estates
Ltd for a declaration that the tenant, Susan Ann Hirshorn, was not entitled to
a new lease pursuant to section 42 of the Leasehold Reform, Housing and Urban
Development Act 1993.
Anthony
Radevsky (instructed by Lee & Pembertons) appeared for the applicants;
Montague Palfrey (instructed by Bircham & Co) represented the respondent.
Giving
judgment, JUDGE COWELL said: In many ways I would have preferred to
reserve judgment, but I have formed a clear view. A notice was served on
January 7. It was purportedly a notice under section 42 of the Leasehold
Reform, Housing and Urban Development Act 1993, being a claim by a qualifying
tenant of the flat to exercise the right to acquire a new lease of the flat. It
was received by the landlords’ solicitors on January 8. It specified among
other things, as it is required to do under section 42(3)(f), the date by which
the landlords should respond to the notice by giving a counternotice, and that
date
says that:
The date
specified in the tenant’s notice in pursuance of subsection (3)(f) must be a
date falling not less than two months after the date of the giving of the
notice.
The giving of
the notice, as is apparent, was on January 8, as I have indicated, there being
date stamps or marks on the notices. There were two notices because there were
two entities that might have qualified as landlords, but nothing turns on that.
The date stamps were January 8, so there was the date of giving of the notice.
It is perfectly clear that that date of March 7 was not ‘not less than two
months after the date of the giving of the notice’. That is one defect relied
upon in the notice.
The other
defect relied upon is that the notice was signed by the solicitors acting on
behalf of the tenant, and the point is taken that the notice is invalid because
it ought to have been signed by the tenant. I have to say that at first sight I
thought that that point, that it had to be signed by the tenant, was wrong, but
I had not at that stage looked carefully at the section that deals with the
matter, which is section 99 of the Act, and in particular section 99(5).
Just before I
come to that, I should point out that in the notes to Halsbury’s Supplement
(the current statutes service) 4th ed, in which the Leasehold Reform, Housing
and Urban Development 1993 is set out in full with some fairly copious notes,
there is a note at what is p126 of the supplement which says:
A notice
given under this section must be signed by or on behalf of the tenant or
tenants by whom it is given, see section 99(5) post.
That note, of
course, indicates what is ordinarily the law, that a notice can be signed by
the person giving it or by someone acting on his behalf.
If one goes to
section 99(5) and reads it carefully, what it says is:
Any notice
which is given under Chapter I or II by any tenants or tenant must —
(a) if it is
a notice given under section 13 or 42, be signed by each of the tenants, or (as
the case may be) by the tenant, by whom it is given; and
(b) in any
other case, be signed by or on behalf of each of the tenants, or (as the case
may be) by or on behalf of the tenant, by whom it is given.
I should point
out that Chapter I deals with what has been called collective enfranchisement,
the rights that can be exercised by a body of tenants, sometimes a very large
body of tenants. Section 13 is the section by which that body of tenants serves
its notice, and it begins by saying:
(1) A claim
to exercise the right to collective enfranchisement with respect to any
premises is made by the giving of notice of the claim under this section.
Of course, it
is very easy to understand that in such a case it is very important that, for
reasons of convenience and expediency, only the tenants sign the notice. All
sorts of problems arise when an agent signs, as might happen, purporting to
sign on behalf of a vast number of tenants, and many questions may arise in
practice as to whether that agent had the authority of the tenants.
It was not at
first clear to me why any requirement should be made for a single tenant giving
a notice under section 42 to sign it personally and, I should point out, it is
perfectly clear that section 42 does deal with a claim by a qualifying tenant (I
stress the singular). But it seems to me that, whether there is a reason or
not, the distinction or the contrast pointed to by paras (a) and (b) of section
99(5) is so stark that the only conclusion I can reach, in accordance with the
ordinary canons of construction, is that a notice under section 42 cannot be
signed on behalf of a tenant.
Having said
that, it may very well be that there is a good reason for it, as has been
pointed out by a Mr Clark in a work The Leasehold Enfranchisement — The New
Law, in which he reads that section in just that way. He says:
Personal
signature is more likely to bring to the attention of the tenant the commitment
involved in proceeding, and prevents in a collective enfranchisement any
attempt to use the name of qualifying tenants without their knowledge and
agreement. The potential liability for costs will no doubt be drawn to the
attention of clients at this time.
He is there
referring to section 60 of the Act, which is a statutory imposition of a
liability for costs on a tenant. But, as I have indicated, whether or not there
is a reason for including a section 42 notice under para (a) rather than (b),
it does seem to me that the contrast pointed by those two paras, (a) and (b),
is so great that that is the construction that I have to give to that section
99(5).
That being so,
it is not necessary for me to deal with the second point, but it does seem to
me that the notice was not valid because it did not give the appropriate time.
Very briefly, I can say that I see no reason why the parties to a transaction
of this kind cannot agree to extend time, but in this case I do not think that
the applicants (the landlords) at any stage did in fact waive the invalidity of
this particular notice of January 7.
There was an
attempt to put the matter right, because in May 1997 the tenant actually signed
a document in the form of the January 7 notice. It was dated January 1 and was
served in May, but, in my judgment, that simply will not do, apart from being
generally potentially misleading, though in this case no attempt to mislead was
made because it was made perfectly clear what was going on by a covering
letter. So I intend no criticism of the advisers of the applicants when they
did that. But it seems to me that it simply will not work as the giving of a
valid notice on January 7.
Mr Montague
Palfrey, who has taken every point he can on the part of the respondent, has
referred me in his argument to a passage in Hill and Redman at para
E[1325] on pE735, where there is a general note. Unfortunately for him, as of
course he has to concede, the conclusion reached in this particular passage in
a footnote — which is to the effect that seemingly the court has no power to
consider the form of the notice which was given, but that under section 49 all
it can do is determine whether the tenant had a right to serve a notice —
appears to have been doubted for reasons which were given in the next section
beginning with the words, ‘This is odd …’. In that passage the authors seem to
demolish the earlier conclusion by referring to two different things, one being
the substantive question whether, on January 7 in this case, the tenant did
have a right to be enfranchised in the sense that she had the right kind of
lease, she had the right kind of residence qualifications and the like. That is
contrasted with the procedural question of how she set about asserting that
right by the giving of the notice.
There are two
authorities to which I have been referred, one a decision of Judge Hallgarten*
and the other Mr Recorder Kalipetis†, and I need say no more than that the gist
of them is to the effect that whether a notice is valid or not is not
determined under section 49, but is a matter which can be determined under
section 90. At any rate, that is my view, that under section 90(2):
*Editor’s
note: See Mutual Place Property Management Ltd v Blaquiere [1996]
2 EGLR 78
†Editor’s
note: See Viscount Chelsea v Morris [1997] 2 EGLR 100
There shall
also be brought in a county court any proceedings for determining any question
arising under or by virtue of any provision of Chapter I or II or this Chapter
which is not a question falling …
and then some
other jurisdictions are referred to.
So it seems to
me that what section 90 is concerned about is any question arising — such as
this question here about the validity of the notice — and that what section 46
is concerned with is what I may call the consequences of the landlords in their
counternotice having denied — and these are the words of section 45 — the right
to acquire a new lease. It seems to me it is the basic matters of qualification
to have that right which section 46 is dealing with, and not with any question
of procedural regularity.
That, I think,
deals with the passage in Hill and Redman.
Finally — I
think it is finally — there is a provision in Schedule 12, para 9(1), which
says:
The tenant’s
notice shall not be invalidated by any inaccuracy in any of the particulars
required by section 42(3) or by any misdescription of any of the property to
which the claim extends.
There is a
further provision about a notice being amended if it specifies, I think, the
wrong property or fails to specify property which is not in point.
The
particulars required by section 42(3) are, in my judgment, the particulars that
are set out in section 42(3)(b). I suppose it might also extend to things like
the name of the tenant and the address of the flat in subpara (a). It is argued
that it could extend to subpara (f) of subsection (3), but all that says is
that the date by which the landlord must respond to the notice by giving a
counternotice under section 45 must be specified. But there is nothing in para
9 of Schedule 12 to say that anything required by section 42(5) is intended to
be referred to and that the notice shall not be invalidated on account of an
inaccuracy there. It is subsection (5) of section 42 that says what date must
be mentioned in the notice. So it does not seem to me that para 9 of Schedule
12 can possibly get over the objection about the period being specified and,
since there is nothing in para 42(3) anywhere dealing with the question of
signature, which seems to me is a sort of freestanding matter mentioned in
section 99(5), para 9 of Schedule 12 cannot in any way help to prevent the
notice of January 7 being invalid.
I should
explain that a later notice was given on January 29, but that was at a time
when the entitlement had gone; in other words, the right to acquire no longer
existed by that date.
That, I think,
deals with all the matters argued. Very briefly, in summary, it seems to me
that the passage cited by Mr Palfrey from Tennant v London County
Council (1957) 55 LGR 421 of course accurately sets out the general principle
that, prima facie, where there is a provision in a statute requiring a
document to be signed and nothing in the subject-matter or context of the
legislation to indicate that personal signature is necessary, then the common
law rule prevails, and a signature duly authorised by a person affixed to a
document by another person is the signature of the person giving the authority.
But that is only a prima facie situation and here, although the word
‘personal’ does not appear anywhere in the section, it does seem to me that the
subject-matter and the context of the legislation, in particular the different
paras (a) and (b) of subsection (5) of section 99, in this case prevails.
Therefore, it seems to me,
subject to any further observations of counsel about the form of relief, that
the applicants are entitled to a declaration that the notices of January 7 are
not valid.
