In an
attempt to ensure that residential tenants have, at the very least, a point of
contact with their landlords, various pieces of legislation require the latter
to provide names and addresses for various purposes. Since the consequences for
non-compliance are often severe, landlords and their advisers must take great
care in ascertaining the precise requirements of each statutory provision since
these vary in their details.
name and address
Section 47 of
the Landlord and Tenant Act 1987 requires that any written rent demand given to
a tenant of premises which include a dwelling must contain the name and address
of the landlord; where that address is not in England and Wales the
demand must include an address in England and Wales at which notices
(including notices in proceedings) may be served on the landlord by the tenant.
The penalty for non-compliance is that any part of the sum demanded which
consists of a service charge is not legally due until the section is complied
with.
Section 3 of
the Landlord and Tenant Act 1985 provides that, where the reversion on a
tenancy of premises which include a dwelling is assigned, the new landlord
must give notice to the tenant of the assignment and must provide the tenant
with the landlord’s name and address. Failure to comply without
reasonable excuse amounts to a criminal offence. The same section renders the former
landlord liable on all the covenants in the lease until such time as either
the new landlord has given his name and address to the tenant or the former
landlord has given the tenant that information.
Sections 4
and 5 of the 1985 Act apply only where residential tenants pay a weekly rent.
Here, the landlord must provide a rent book and this must contain notice of the
name and address of the landlord. A failure to comply amounts to a criminal
offence.
Finally,
where a tenant who occupies premises as a dwelling makes a written
request for the name and address of his landlord to any person who demands
rent, or the last person who received rent, or any person who is for the time
being acting as agent for the landlord in respect of the premises, that person
must supply the tenant with that information within 21 days. Again, a failure
to comply without reasonable excuse amounts to a criminal offence.
for notices
It can be
seen that, in the above instances, it is usually sufficient simply to provide
the landlord’s name and address. The one exception relates to rent
demands in cases where the landlord’s address is not in England and Wales. Here
the demand must include an address in England and Wales at which notices
(including notices in proceedings) can be served on the landlord by the tenant.
However, section 48 of the Landlord and Tenant Act 1987 imposes a distinct
requirement that a tenant be furnished with such an address. Section 48(2) provides
that where this requirement is not complied with ‘any rent or service charge
otherwise due from the tenant to the landlord shall . . . be treated for all
purposes as not being due . . . at any time before the landlord does comply . .
.’.
Many
landlords and their professional advisers were not aware of section 48 until
the county court decision in Cambridge County Council v Faulkner (1991)
and then that of the High Court in Dallhold Estates (UK) Pty Ltd v Lindsey
Trading Properties Inc [1992] 23 EG 112 (see ‘Legal Notes’, [1992] 01 EG
101 and [1992] 13 EG 123) was given wide publicity. These cases brought home to
landlords that the section is not confined to purely residential
lettings and that it is not complied with by the simple notification to the tenant
of the landlord’s name and address. Furthermore, it began to dawn on them that
one of the most common grounds on which possession is sought, namely nonpayment
of rent, would not be available unless a section 48 notice has been served
prior to the initiation of any procedures for the recovery of possession. In
the cases in question Case D notices under the Agricultural Holdings Act 1986
(ie those based on non-payment of rent) were held to be invalid where a section
48 notice had not previously been served, and it became clear that a similar
challenge could be mounted against, for example, a section 8 notice based on
nonpayment of rent, under the Housing Act 1988.
Most
properly advised landlords promptly put their houses in order. They served
section 48 notices on existing tenants and many adopted what is surely the
safest course of specifically incorporating a section 48 notice in all new
tenancy agreements. Litigation solicitors, when instructed to initiate
possession procedures based on nonpayment of rent or service charges, would
usually serve section 48 notices either before or at the same time as serving
section 48 notices under the Housing Act or notices to pay under the
Agricultural Holdings Act 1986, unless there was clear evidence that such a notice
had already been served.
Nevertheless,
instances will remain where the precise requirements of section 48 are crucial.
To this extent the recent Court of Appeal ruling in Dallhold will prove
useful. At first instance Chadwick J had ruled that section 48 applies to
lettings under the Agricultural Holdings Act 1986; that the landlord’s first
notice to pay was invalid because it was served at a time when section 48 had
not been complied with and so at a time when, under section 48(2), no rent was
lawfully due; and that the landlord’s second notice to pay, served at the same
time as a section 48 notice, was also not valid since it stated that the
arrears had been due on their respective quarter days when section 48(2)
provides that the rent becomes due only once section 48 has been complied with.
The Court of
Appeal, although agreeing with the landlord that it was surprising that
Parliament had included agricultural holdings within the ambit of section 48,
nevertheless agreed with the trial judge that the section is excluded only in
the case of 1954 Act tenancies and that the phrase ‘premises which consist of
or include a dwelling’ is apt to cover agricultural holdings. Their lordships
also agreed that no section 48 notice had been served until the landlords had
written expressly stating that the address provided is one at which
notices, including notices in proceedings, may be served on the landlord by the
tenant. It is not sufficient for the purposes of satisfying section 48 to
provide an address which would, in the event, be an effective address for
service. The court indicated, although it did not have to decide, that a letter
which did not on its own terms satisfy section 48 might nevertheless be held to
do so in the light of preceding correspondence with the tenant.
However, the
Court of Appeal was unanimous in holding that the second notice to pay was
valid, despite having stated the wrong due dates. Their lordships were all
satisfied that this error was not fatal. The amount of rent stated to be due
was correct; it was all due at the time the notice was served; it would all
need to be paid within the two months allowed under the 1986 Act. In these
circumstances the technically incorrect due dates would not have misled or
confused the tenant and the notice was valid.
Readers
might be interested to know of another recent case on section 48. In Milestate
v Clarke (1994) a corporate landlord argued that it had complied
with section 48 by providing the tenant with the address of its registered
office, since section 287 of the Companies Act 1985 provides that notices may
be served on a company at its registered office. Judge Coltart in Brighton
County Court rejected this suggestion; in his view, section 48 requires that it
is made clear to a tenant unfamiliar with the law that the address is one at
which notices can be served on the landlord.
