Both the correct drafting of notices and the validity of their service have been a constant source of disagreement and litigation. This has often been the case with enfranchisement and new flat lease claims (under Part I, Leasehold Reform, Housing and Urban Development Act 1993).
With 1993 Act claims, notices must be in writing and they may be served by post (emphasis added). Leaseholders initiate claims by giving a copy of their claim notice to the landlord who in turn must respond by giving a counter-notice by the date specified by the claimants.
The consequences for a landlord who fails to give a valid counter-notice in time are serious. Leaseholders can apply for a vesting order. Several years ago the Court of Appeal decided that the court considering the application must make the vesting order in the terms proposed by the leaseholders (see: Willingale v Globalgrange (2001) 33 H.L.R.17). The landlord loses the right to challenge the terms proposed by the claimant leaseholders (including the price).
In Callendine-Smith v Saveorder Ltd [2012] L. & T.R. 3 it was decided that although section 7 of the Interpretation Act 1978 states the a notice that was posted, correctly addressed and prepaid is deemed to have been served, this is not so where the ‘contrary’ is proved. As the leaseholder in that case had not received it the contrary was proved so there was no deemed service.
What is the position where the landlord sends the counter-notice by e-mail? This was considered in the case of Cowthorpe Road Freehold Limited v Wahedally PLSCS 247 [2016] a decision of the Central London County Court. Those advising the landlord posted a copy of the counter-notice on the last day before the final date of service (a Saturday). That Friday the landlord’s solicitors also e-mailed a copy.
The claimants stated that they only received the posted copy the following Monday. They did not accept that the e-mailed copy was effective service so they sought a vesting order. The court decided that service by e-mail was not valid. Notices have to be in writing and sending an e-mail does not amount to ‘writing’ for the purposes of the 1993 Act. Moreover, the claimant’s solicitors stated that they would not accept service by e-mail: the court found that sending the notice by e-mail was not good service. It also rejected the landlord’s submission that giving as the last date for service on a Saturday somehow invalidated the claim notice. Finally, and not surprisingly, the court rejected the landlord’s submission that it has power to extend the time for giving of the counter-notice. The Act clearly does not allow for this.
An order vesting the freehold in favour of the claimants was made for the premium they proposed (the sum of £41,550 (less, presumably their costs) – the landlord countered with a figure of £60,000).
In cases like this when the time for service is fast running out the safest course may be to arrange for personal service.
James Driscoll is a solicitor and a writer
