Tenant serving notice to renew lease – Notice specifying less than two months for service of landlord’s counter-notice – Service of notice on third party more than two months later – Validity of notice on landlord – Leasehold Reform, Housing and Urban Development Act 1993, section 42 – Judge refusing to declare notice invalid – Appeal allowed
The appellant landlord was the freeholder of 94 Carlton Hill, St John’s Wood, London. The respondent was a tenant of a basement flat within the property. The tenant purported to make a claim under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993 to acquire a new lease of the flat, and he served a notice on the landlord on 12 February 1997. The notice expressed that the date by which the landlord was to give a counternotice, in accordance with section 42(3)(f) of the Act, was 11 April 1997. It was common ground that the managing agent, as a party to the original lease, was the third party for the purposes of the Act.
In purported compliance with section 42(2)(b), the tenant served a notice on the third party on 23 April 1997. The landlord served a counternotice on the tenant that alleged that the tenant’s notice did not comply with section 42(3)(f) and 42(5) of the Act, since the specified date by which the landlord was to serve a counternotice under section 45 of the Act fell less than two months after the date of the service of the tenant’s notice. Furthermore, contrary to section 42(2)(b) of the Act, the tenant’s notice had not been given to the managing agent within the two months. The landlord sought a declaration that the tenant’s notice under section 42 of the Act was invalid.
The judge refused the declaration. He found that the notices did not comply with the requirements of section 42 of the Act, since the expressed period for the counternotice was one day short of the required two months. In any event, the two months had to be calculated from the date of service of the notice on both the landlord and the third party to the lease, namely 23 April 1997. However, he went on to hold that the notices were saved by para 9(1) of Schedule 12 to the Act, which provided that: “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.” The landlord appealed.
Held: The appeal was allowed.
1. Since the landlord’s application for a declaration had been refused by the judge, the Court of Appeal had considered the effect of para 9(1) of Schedule 12 to the Act in Cadogan v Morris [1999] 1 EGLR 59. It could be concluded that if the judge had had the benefit of that decision he would have held that para 9(1) of Schedule 12 did not apply to the tenant’s notice.
2. A claim for a new tenancy under the 1993 Act required notice to be sent to the landlord and the third party to the lease and required the specified date for service of a counter-notice to be a date not less than two months after the giving of the notice. Section 42 contemplated that both the landlord and third party would be served at the same time. Had parliament intended otherwise, the Act would have made this clear. Accordingly, the judge was right to find that time did not run on the landlord’s notice until 23 April 1997.
(3) The principles set out in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 1 EGLR 57 and subsequently affirmed in York and another v Casey and another [1998] 2 EGLR 25 were not applicable. Even if the date for service of the counter-notice ran from the date when the notice was served on the landlords, there was no reason why the notice could have been saved by the principles in Mannai.
Anthony Radevsky (instructed by Lee & Pembertons) appeared for the appellant; Mark Muller (instructed by St Johns, of Hounslow) appeared for the respondent.
Thomas Elliott, barrister
