Section 48 of the
Landlord and Tenant Act 1987 will not be satisfied where:
· no landlord’s address is given
· the only address given is
expressly stated to be given for limited purposes
· the address given is for someone
who is not the landlord’s agent for the purposes of the tenancy
A recent Court of
Appeal decision serves to remind residential landlords (and their agents) of
the need to comply with statutes requiring information to be provided to
tenants. In particular, it recalls memories of the early 1990s, when a series
of high-profile cases highlighted the full import of section 48 of the Landlord
and Tenant Act 1987. This requires a landlord of premises that include a
dwelling to provide the tenant with an address in England and Wales at which
notices (including notices in proceedings) may be served on him.
The penalty for
non-compliance is that no rent or service charge payments are legally due until
such a notice has been served. The right to rent and service charges is not
lost for all time, but any claim to interest on so‑called arrears
disappears, and any right to regain possession based on non-payment of rent
cannot be made out unless the tenant has failed to pay after the service of the
section 48 notice.
Originally the
Court of Appeal took a very strict view of the section, suggesting that nothing
short of an explicit statement that the address in question was one at which
notices could be served on the landlord would suffice: Dallhold Estates (UK)
Pty Ltd v Lindsey Trading Properties Inc [1994]
17 EG 148. This meant that in many situations, where the tenant had been
informed of the landlord’s (or his agent’s) address in, say, the tenancy
agreement, a rent book or on a rent demand, the requirements of the section appeared
not to be satisfied because of the failure positively to inform the tenant that
this was an address for the service of notices.
However, in Rogan
v Woodfield Building Services Ltd [1995]
20 EG 132 a subsequent Court of Appeal retreated from this position. It
accepted that the notice might be specific and independent, or a provision in
the tenancy agreement, or included in a separate document such as a rent book
or a rent demand. Further, and crucially, they ruled that it was not necessary
for the tenant to be informed specifically that this is an address for the
service of notices. So long as the address given is in England or Wales, this
may be assumed. It was then held in Marath v MacGillivray [1996]
28 HLR 484 that the inclusion of the landlord’s address in a notice that was
invalid for its own purposes would nevertheless satisfy section 48.
While Rogan settled
landlords’ nerves, it is clear that the fundamental lesson was not learned by
all. In Drew-Morgan v Hamid-Zadeh [1999]
26 EG 156, the Court of Appeal has once again had to consider whether a
landlord had satisfied section 48. In that case, if she had not, she would have
lost her right to regain possession under Case
(persistent non‑payment of rent lawfully due) since, technically, that
rent would not have been due. At a late stage in proceedings at which the trial
judge had ordered possession, the argument was raised that section 48 had not
been complied with until after the tenant had paid off all the arrears (on the
first day of the hearing), and that therefore no rent had ever been due. This
had been rejected by the judge for reasons that were clearly wrong. The Court
of Appeal therefore had to reconsider this question.
The landlord argued
that sufficient notice for section 48 purposes had been given on two occasions,
both of which predated the payment of arrears. The first was when the landlord
had attempted to terminate what she had then thought was an assured shorthold
tenancy by serving a notice under section 21 of the Housing Act 1988. The
second was when, three months later, she had first applied to court for
possession. The Court of Appeal held that the abortive section 21 notice had
done effective duty as a section 48 notice, but that the possession application
had not. Its reasons will be useful for those needing to conjure a section 48
notice out of something else.
Judge LJ was
satisfied that the ineffective section 21 notice sufficed for the purposes of
section 48, since it named the landlord and gave an address for her as ‘c/o’ an
address; this was identified as that of the ‘landlord’s agent’, who was himself
named and who had signed the notice. It mattered not that it was not a valid
section 21 notice, that it was not served for the purposes of section 48 and
that it did not state specifically that this was an address at which notices
could be served on the landlord.
The application for
possession was a different matter. The summons included a box in which the name
and address of the plaintiff landlord’s solicitors was inserted. However, the
standard form states that this is provided for the purposes of ‘service and
payment’. This meant that it was fatally flawed as a section 48 notice for two
reasons. First, the name and address was given for limited purposes, namely for
service in connection with the proceedings for possession. Second, solicitors
identified for specific litigation were unlikely to be the landlord’s agent for
other matters connected with the tenancy. It was therefore held that:
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).
Thus, it appears
that the only situations in which the requirements of section 48 are not met
are: first, where the tenant is not given any address in England or Wales;
second where (as in Dallhold) the only English or Welsh address provided
is expressly stated to be for limited purposes (eg the payment of rent), which
do not include the service of notices; and, third, where the address given is
that of someone who is not the landlord’s agent for the purposes of the
tenancy.
