Housing Act 1988 – Landlord seeking possession of flat on Ground 11- Tenant claiming rent not lawfully due because of landlord’s failure to notify particulars required by section 48 of the Landlord and Tenant Act 1987 – Whether section satisfied by documents served earlier in proceedings – Tenant’s appeal dismissed
In 1989 the claimant landlord granted to the defendant tenant a tenancy of a flat in London NW3. In December 1994 the landlord, believing that the tenant occupied the flat under an assured shorthold tenancy, served on the defendant a notice under section 21 of the Housing Act 1988 (the section 21 notice), with a view to using the “accelerated procedure”, provided for by that section, for the recovery of possession on the termination of such a tenancy. The section 21 notice recorded the landlord’s name and the name and address of her solicitors, who were described as the “landlord’s agent”. In March 1995 the landlord invoked the accelerated procedure by serving a county court application (the section 21 application), in which the name and address of the same solicitors appeared in a printed box with the caption “for service and payment”. The landlord obtained a possession order, but the tenant successfully applied for a rehearing. In July 1997 the section 21 application was consolidated with fresh proceedings instituted by the landlord, which were founded, inter alia, on the discretionary Ground 11 of Schedule 2 to the 1988 Act, and alleged that the tenant had persistently delayed paying rent “which has become lawfully due”. At the rehearing the section 21 application was dismissed for reasons not taken further on appeal. However, the claim on Ground 11 succeeded, the judge having found a long history of blatant and inexcusable failure to pay rent.
The tenant appealed on the ground (not fully raised in the court below) that, notwithstanding her contractual indebtedness on various occasions, no rent had become “lawfully due”, at any material time. That was the effect, so it was argued, of section 48 of the Landlord and Tenant Act 1987, whereby rent otherwise due is deemed not to be due at any time before the landlord has furnished the tenant, by notice, with an address at which notices may be served by the tenant. Before the Court of Appeal the landlord contended that the requirements of section 48 had been satisfied by the section 21 notice as well as by the section 21 application.
Held: The appeal was dismissed
1. The section 21 notice complied with section 48 of the 1987 Act, which merely required that the tenant be told of the landlord’s name and an address in England or Wales. So long as that information was given without limitation or qualification, it was not necessary to state that the address was a place to which notices could be sent: see Rogan v Woodfield Building Services Ltd [1995] 1 EGLR 72. Nor could it be objected that the notice was served, effectively or otherwise, for the purpose of a different statutory provision: see Marath & Marath v MacGillivary (1996) 28 HLR 484.
2. The section 21 application did not satisfy section 48, as the caption to the box was a significant limitation or qualification, given that solicitors identified for the purposes of an individual piece of litigation could not be taken to be the landlord’s agents for other purposes.
Sylvester Carrott (instructed by Christian Fisher & Co) appeared for the appellant; Arthur Moore (instructed by Jim McKenzie & Co) appeared for the respondent.
Alan Cooklin, barrister
