Landlord and tenant – Periodic tenancy – Notice to quit – Appellant landlord appealing against decision dismissing claim for possession because notice to quit invalid for lack of clarity – Whether appellant following correct procedure for terminating tenancy following death of tenant before grant of probate or letters of administration – Appeal allowed
The appellant, a registered social housing provider, granted A and his wife a joint assured tenancy of a property at 45 Pier Street, Isle of Dogs, E14. On his wife’s death, A became the sole tenant by survivorship. When A died in August 2018, the second respondent remained in occupation of the property.
The appellant served a notice to quit under section 18(1)(a) of the Law of Property (Miscellaneous Provisions) Act 1994 which provided that a notice affecting land which would have been served on a person but for his death would be sufficiently served before grant of representation if: it was addressed to the first respondent personal representatives and left at or sent by post to his last known place of residence or business in the UK; and a copy of it, similarly addressed, was served on the public trustee.
The notice to quit was sent by first class post to the property on 15 October 2018. It was addressed to the personal representatives. The deemed date of service was 17 October 2018 so that the notice expired on 18 November 2018. The appellant also sent a copy of the notice to the public trustee which was received on 30 October 2018 which meant that it expired on 2 December 2018.
The appellant claimed possession of the property. The first respondents did not defend the claim but the second respondent did. A deputy district judge, following the decision in Hackney London Borough Council v Pavey (21 November 2017, unreported), dismissed the appellant’s claim. He decided that the notice was invalid for lack of clarity because the expiry dates of the notice sent to the property and the copy sent to the public trustee were different. The appellant appealed.
Held: The appeal was allowed.
(1) It was fundamental that what was served on the public trustee was only a copy of the notice to quit. It was not an independent, self-standing notice. Section 18(1)(b) required the copy to be addressed, not to the public trustee, but to the personal representatives. It was the notice to quit left at or sent to the property which was the operative document for determining the tenancy. In section 18(1) as enacted, the original notice was to be served on the personal representatives at the property and only a copy of it was to be sent to the public trustee. There was nothing in sections 18 or 19 of the 1994 Act, or in the Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995, which required the public trustee to keep a record of when the copy was received. The legislation required only very limited details to be recorded on the register maintained by the public trustee. They did not include the date of receipt by the public trustee of the copy under section 18(1)(b).
The origins of section 18 could be traced back to the Law Commission’s report, Property Law: Title on Death (Law Com No. 184) (Cm 777), published in 1989, the primary focus of which was on the difficulties of owners of land being able to serve notices following the death of the person who would otherwise have been the recipient. The role of the copy notice sent to the public trustee, as a document for the information of those interested in the estate and anyone else, was subsidiary: Pavey overruled.
(2) The appellant had argued that the expiry date of a notice to quit under section 18(1) was the expiry date of the original notice to quit, served on the personal representatives under section 18(1)(a). Therefore, it was only necessary for the date of expiry of the original notice to quit served under section 18(1)(a) to be clearly ascertainable. Implicit in that argument was that service of the operative document, the notice to quit addressed to the personal representatives and posted to or left at the property, would be retrospectively validated by service of the copy on the public trustee under section 18(1)(b) at any time before the appointment of personal representatives. However, parliament could not possibly have intended that the only time limit on the valid and effective service of the copy under section 18(1)(b) was that service had to take place before the appointment of personal representatives. That was a wholly unpredictable date, which could be years in the waiting if, for example the will, the executors appointed by the will or for some other reason the grant of probate was challenged. Apart from the uncertainty and unpredictability arising from that argument, it had the consequence that it would be possible retrospectively to revive the operative notice to quit which, on its terms, had expired. That would be a remarkable result. In many cases, the date of service of notices was critical for the timing of notices and counternotices. Section 18 on its face applied to any notice affecting land, whether served by the owner, a tenant or a third party. It was not consistent with the objectives of the Law Commission’s recommendation or of parliament in enacting section 18 for there to be a potentially long and uncertain period of delay before effective and valid service.
All those difficulties were avoided if section 18 was interpreted to require service of the copy under section 18(1)(b) prior to expiry of the operative notice, as occurred in the present case.
(3) So long as the public trustee was served before the notice that was sent to the property had expired, there had been good service for the purposes of section 18. That was not oppressive for the landlord, and it was consistent with the objectives of the Law Commission and the legislation. It was both necessary and reasonable to interpret section 18 accordingly in order to make the legislation workable. The case would be remitted to the deputy district judge to determine the second respondent’s defences to the claim other than the validity of the notice to quit.
Nicholas Grundy QC and Victoria Osler (instructed by Capsticks Solicitors) appeared for the appellant; Justin Bates and Nick Bano (instructed by Osbornes Solicitors) appeared for the second respondent; The first respondents did not appear and were not represented.
Eileen O’Grady, barrister
