Landlord and tenant – Assured shorthold tenancy – Possession order – Tenants with assured shorthold tenancy falling into rent arrears – Landlord serving notice seeking possession – Court making possession order – Judge holding notice served under section 8 of Housing Act 1988 invalid as not authenticated – Confirmatory certificate signed by manager validly signed on behalf of respondent – Tenant appealing – Landlord cross-appealing – Whether judge erring in law – Appeal dismissed – Cross-appeal allowed
The landlord company let a residential property in Shirley, West Midlands to the tenants under an assured shorthold tenancy. The rent was payable in advance; and a deposit was protected under the Tenancy Deposit Protection Scheme. The landlord purported to serve a confirmatory certificate pursuant to the Housing (Tenancy Deposits) (Prescribed Information) Order 2007. The certificate was signed by a director (B).
Following non-payment of rent, the landlord served a notice on the tenants, seeking possession pursuant to section 8 of the Housing Act 1988. The notice was in the correct form and set out all the matters required by the governing legislation. It was signed by an employee of the landlord (M); but she struck out the words “landlord’s agent” from the form.
The tenants argued that the notice was invalid as the landlord was a corporate body and the notice should have been executed in accordance with section 44 of the Companies Act 2006 which required two authorised signatories or a director to sign in the presence of a witness.
The form for providing the prescribed information about the security deposit, required by section 213(6) of the Housing Act 2004, contained all the information required by statute. However, the form had only been signed by M, without a witness to that signature.
The High Court upheld the decision of a circuit judge that the first of those documents was invalid as it was not authenticated as required by section 44; but the second was valid, although it had only been signed by the landlord’s agent. Accordingly, the judge granted a possession order: [2020] EWHC 3538 (QB); [2020] PLSCS 236; [2021] 1 WLR 1937.
The second tenant appealed and the landlord cross-appealed.
Held: The appeal was dismissed. The cross-appeal was allowed.
(1) A declaration was in the form or substantially in the form prescribed if the declaration as a whole fulfilled all the essential purposes of the prescribed form. If a reasonable recipient would appreciate that the notice contained an error, but would know what meaning the notice was intended to convey, that was how the notice was to be interpreted. Even if a notice, properly interpreted, did not precisely comply with the statutory requirements, it might be “substantially to the same effect” as a prescribed form if it nevertheless fulfilled the statutory purpose. Where a notice was capable of two interpretations, one of which would lead to the conclusion that it was valid, that interpretation should be preferred.
When the certificate was given, the 2007 Order required the certificate under article 2(1)(g)(vii), to be signed by the “landlord” which at that time had the meaning given by section 212(9) of the Housing Act 2004. It therefore included a person acting on behalf of the landlord in relation to the tenancy. B was such a person. On the face of it, therefore, the certificate was valid at the time it was given. In addition, what the landlord was to certify was that certain information was accurate to the best of his knowledge and belief. In the case of a company, that knowledge and belief could only be that of a human being, whose knowledge and belief was attributable to the company under the rules of attribution.
(2) Although there was a general presumption against retrospective legislation, it might be rebutted by clear statutory language. One of the amendments to article 2 of the 2007 Order in the Deregulation Act 2015 was the disapplication of section 212(9) of the 2004 Act.
However, article 2(3)(a) of the 2007 Order allowed references in paragraph (g)(vii) to “the landlord” to be read as including a person who acted on the landlord’s behalf. That extension applied where the initial requirements of an authorised scheme had been complied with in relation to the deposit. In the present case, the certificate was given in the name of the landlord: The only rational conclusion was that the director was a person acting on behalf of the landlord: Hilmi & Associates Ltd v 20 Pembridge Villas Freehold Ltd [2010] EWCA Civ 314; [2010] 2 EGLR 41 distinguished.
(3) The primary legislation governing notice under section 8 of the Housing Act 1988 did not require signature of anything. It merely required “service” by the landlord of a notice in a particular form. On the face of it, a landlord complied with section 8 if an agent served notice on his behalf, even if the agent signed the notice in the landlord’s name. In addition, the form prescribed by the relevant regulations explicitly allowed notice to be given by and signed by an agent: Newbold v Coal Authority [2013] EWCA Civ 584; [2014] 1 WLR 1288 applied.
In the present case, the notice under section 8 was signed by an authorised agent of the landlord. That complied both with the primary legislation and the prescribed form. The only conceivable error was that M crossed out the wrong part of the rubric underneath her signature. Since she was authorised by the landlord to sign the section 8 notice, her signature counted as that of the company.
(4) The judge correctly held that the purpose of the notice was to warn the tenant that the landlord was considering seeking an order for possession and to give the tenant time to remedy any default. Both those purposes were fulfilled by the notice that was in fact given. Although the certificate was not authenticated by the landlord itself in the manner required by section 44 of the 2006 Act, authentication by an agent was not fatal to the validity of a certificate, as shown both by section 212(9) of the 2004 Act and also by the intention behind the amendments in the Deregulation Act 2015.
The certificate in fact gave the tenants all the information that was required. That information was authenticated on behalf of the landlord by someone authorised to do so. Accordingly, the certificate was valid.
Christopher Heather QC and Stephen Cottle (instructed by the Community Law Partnership, of Birmingham) appeared for the appellant/respondent tenant. Justin Bates and Tom Morris (instructed by JMW Solicitors) appeared for the respondent/appellant landlord. The first and third respondents in the second appeal did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Northwood (Solihull) Ltd v Fearne and others
