Notices do not have to be executed in accordance with Companies Act

Northwood (Solihull) Ltd v Cooke and (1) Fearn and others v Northwood (Solihull) Ltd [2022] EWCA Civ 40 is the appeal and cross appeal of Saini J’s findings that a certificate (the deposit certificate) providing information about the deposit scheme and given to a tenant under section 213 of the Housing Act 2004 was invalid as it had not been authenticated in the manner required by section 44 of the Companies Act 2006 and that a notice seeking possession given under section 8 of the Housing Act 1988 (the s 8 notice) was valid although it had only been signed by the landlord’s agent. The primary legislation concerning deposit schemes is the Housing Act 2004. Section 213 requires that a tenant be provided with “prescribed information” in a “prescribed form” or “form substantially to the same effect”. These prescribed elements are the subject of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (the 2007 Order), Article 2 of which was amended by the Deregulation Act 2015. The amended Article 2 requires confirmation to be given in a form signed by the landlord. The deposit certificate correctly gave the name of the landlord (a limited company Northwood Solihull Ltd) but was signed by only one director, A Brown. Section 44 of the 2006 Act requires that if a document is to be validly executed by signature (as opposed to seal), it must be signed by two authorised signatories or a director in the presence of a witness who attests the documents. However, the Court of Appeal was clear that the assumption that only execution by the landlord which accorded with that section was permitted was flawed. Section 212(9) of the Housing Act 2004 expressly extends the definition of landlord to include a person acting on behalf of the landlord. The amendments made by the Deregulation Act could have led to the unpalatable conclusion that the deposit certificate could not be validated by relying on that subsection but Article 2(3) allows references to landlord to be read as including a person who acted on the landlord’s behalf. Hilmi & Associates Ltd v 20 Pembridge Villas Freehold [2010]EWCA Civ 314 (on which Judge Saini had placed considerable weight) could be distinguished; as a general rule  a person is treated as having signed a document if it is signed on his behalf and with his authority and whereas some statutes exceptionally require a personal signature, there was no such requirement in the Housing Act 2004 or the 2007 Order. The deposit certificate gave the tenants all the information it was required to do and was signed by a person authorised to sign it. It fulfilled all the statutory purposes it was required to fulfil. The section 8 notice also complied with the statutory requirements. The criticism was that it was signed by the landlord’s property manager who struck out the words “landlord’s agent” from the form and left the description landlord. The primary legislation did not require a signature, only that the notice be in the prescribed form. The section 8 notice was signed by an authorised agent of the landlord and that complies both with the primary legislation and the prescribed form. Even if the error was not cured by arguing that the agent’s signature counted as that of the company, the effect of the section 8 notice was substantially the same. It warned the tenant that the landlord was considering seeking an order for possession, giving time to the tenant to remedy any default and was a gateway to proceedings. In any event, if the matters complained of had meant the notices did not comply with the statutory requirements, was it fatal to their validity? Applying Osman v Natt [2014] EWCA Civ 1520, summarised in Elim Court RTM Co Ltd v Avon Freeholds Ltd [2017] EWCA Civ 89 and followed by Eastern Pyramid Group Corpn SA v Spire House RTM Co Ltd [2021] EWCA Civ 1658, the answer was no. The deposit certificate and the section 8 notice were both effective. In relation to the deposit certificate, Lord Justice Lewison commented: “If an authorised and authenticated certificate, containing all the right information is given to the tenant, I cannot see that any harm has been done. “I would hold that even if the certificate did not strictly comply with the requirements about the authentication by the landlord, it is still valid”.  And in relation to the section 8 notice, he said: “I cannot think that it could have been parliament’s intention that such an immaterial error would invalidate the notice”. Elizabeth Haggerty is a barrister