Landlord and tenant — Landlord and Tenant Act 1954 — Section 25 notice terminating tenancy — Landlord and Tenant Act 1954, Part II (Notices) Regulations 1983 (as amended) — Notice differed from prescribed form — Whether notice valid
In July 1996
the appellant landlord served the respondent tenants with notices under section
25 of the Landlord and Tenant Act 1954,
respondents did not serve any counternotices and on January 27 1997 the
appellant took possession of the premises. In proceedings by the respondents to
recover possession, the court below decided that the section 25 notices were
invalid because they differed from the forms prescribed by the Landlord and
Tenant Act 1954, Part II (Notices) Regulations 1983 (as amended) in the
following respects: they did not contain the ‘Act Quick’ warning notice which
appears in the prescribed form before para 1; grounds (f) and (g)
to para 4 of the notes were omitted; paras 5 to 9 were omitted; and the ‘Time
Warning’ in the notes was not enclosed within a rectangle. The landlord
appealed.
the prescribed form were such that it cannot be said that the notices were
substantially to like effect as the prescribed form. It is no excuse to omit
the notes on the effect of paras (b) and (f) of section 30(1)
where the landlord no longer opposed the grant of a new tenancy on one of the
stated grounds. The warning notice is an important part of the prescribed form
and its omission could not mean that the notices were substantially to like
effect as the prescribed form. To the extent that Morris v Patel
[1987] 1 EGLR 75 suggests that the court can disregard an omission if the
consequences of the omission turn out to be negligible, it is not sound law.
The following
cases are referred to in this report.
Barclays
Bank Ltd v Ascott [1961] 1 WLR 717; [1961] 1
All ER 782
Morris v Patel [1987] 1 EGLR 75; (1987) 281 EG 419, CA
Sun
Alliance & London Assurance Co Ltd v Hayman
[1975] 1 WLR 177; [1975] 1 All ER 135; (1974) 29 P&CR 422; [1975] 1 EGLR
63; [1975] EGD 72; 233 EG 927, CA
Tegerdine
v Brooks (1977) 36 P&CR 261; [1978] 1
EGLR 33; [1978] EGD 49; 245 EG 51, CA
This was an
appeal by the landlord, Sabella Ltd, from a decision of Mr Michael Hart QC,
sitting as a deputy judge of the Chancery Division, at the hearing of questions
under Ord 14A in proceedings by the landlord against the respondents, Scott
Montgomery, Stephen Harron, Gerald Alexander Montgomery and Trendtown Ltd.
Joanne Moss
(instructed by Goldkorn Davies Mathias) appeared for the appellant; Adrian Iles
(instructed by H Omar & Co) represented the respondents.
Giving the
first judgment at the invitation of Sir Richard Scott V-C, ALDOUS LJ
said: By originating summons dated May 12 1996 the plaintiff, Sabella Ltd,
claimed possession of premises known as 76 Grove Park, London W4. The original
defendants, Mr Scott Montgomery and Mr Stephen Harron, disputed Sabella’s claim
and alleged that Mr Gerald Montgomery, alternatively Trendtown Ltd, was
entitled to be in possession as tenant. In consequence they were added as
defendants.
In July 1996
Sabella served upon Mr Scott Montgomery, Mr Harron, Mr Gerald Montgomery and
Trendtown, notices pursuant to section 25 of the Landlord and Tenant Act 1954
to terminate any tenancy there might be. Those served were advised that the
notices were not valid and did not respond by serving counternotices. On January
10 1997 the period stipulated by the notices expired, and on January 27 the
plaintiff took possession of the premises.
By a writ
dated February 27 1997, Mr Gerald Montgomery and Trendtown claimed that Sabella
had unlawfully interfered with their right to possession. They claimed
injunctive relief and damages and by notices of motion sought interlocutory
relief, in essence, to be restored to possession pending the hearing of the
action.
At the
substantive hearing of the motions the validity of the notices was called into
question. As a consequence it was accepted by the parties that the judge should
decide, pursuant to RSC Ord 14A, whether the section 25 notices were valid.
Whether that was a decision in the 1996 or 1997 proceedings is not clear. But
that does not matter as his decision would bind all the parties. He concluded
that the notices were not valid. Against that conclusion Sabella appealed.
Section 25 of
the Landlord and Tenant Act 1954 permits a landlord to terminate a tenancy to
which that part of the Act applies by a notice given to the defendant in the
prescribed form, specifying the date on which the tenancy is to come to an end.
Section 66 of the Act makes provision as to such notices. The relevant parts
are in this form:
66. — (1) Any form of notice required by this Act to be prescribed shall
be prescribed by regulations made by the Secretary of State by statutory
instrument.
(2) Where the
form of a notice to be served on persons of any description is to be prescribed
for any of the purposes of this Act, the form to be prescribed shall include
such an explanation of the relevant provisions of this Act as appears to the
Secretary of State requisite for informing persons of that description of their
rights and obligations under those provisions.
(3) Different
forms of notice may be prescribed for the purposes of the operation of any
provision of this Act in relation to different cases.
The current
regulations are the Landlord and Tenant Act 1954, Part II (Notices) Regulations
1983 as amended in 1989. Para 2 of those regulations, when read with para 3,
provides that the appropriate form shall be used or a form substantially to
like effect. The appropriate form for this case is form 1.
The notices
which were served by Sabella differed from the designated form in five
respects, four of which were referred to by the judge. I will confine this
judgment to those four. First, they did not contain the ‘Act Quick’ warning
notice which appears in the form before para 1. Second, grounds (f) and
(g) to para 4 of the notes were omitted. Third, paras 5 to 9 were
omitted. Fourth, the ‘Time Warning’ in the notes was not enclosed within a
rectangle. That was considered irrelevant by the judge. I agree and therefore
disregard it.
The way that
para 5 was completed is also important. The alternative form was used. It was
completed so as to state that Sabella would oppose the grant of a new tenancy
on the grounds mentioned ‘in paragraphs (b) and (f) of section
30(1) of the Act’: see notes 4 and 5. The judge held that the notices were
invalid because they were not substantially to like effect to the form
prescribed. He said:
In the first
place, it seems to me that the box that appears on the face of the notice is an
important requirement, whichever ground is being relied on. I cannot believe,
in particular, that those who issued the regulations and introduced in 1983
this new upper case warning, were introducing it otherwise than on the footing
that it was an important part of the form. I appreciate that what Dillon LJ
said in the case of Morris v Patel may be inconsistent with that
view, but I respectfully express it nevertheless.
I have
already indicated that I do not think any criticism can be made of the omission
of the box around the subsequent warning to the tenant, but the omissions of
the other notes do appear to me to be significant, even so far as they relate
only to ground (b). In particular, notes 7, 8 and 9 are matters which
the maker of the regulations has plainly thought should be included in the
notice.
In addition,
the notice to the inexpert eye, that is to say to a person who did not have any
knowledge of the Act or its provisions other than that supplied by the notice
itself, is extremely confusing in the form in which it has been served, because
it is plain on its face that it is referring to matters, namely notes 4 and 5,
which do either not appear in the accompanying notice at all or do not appear
in their entirety.
Taking all
these points together, and not claiming to hold that any single one of them on
its own would have sufficed to render the notices bad, I have little doubt that
these notices are not valid notices under section 25 of the Act. I should add
that Mr Lewsley relied in support of his argument that the notice could be
upheld in relation to ground (b) alone on the case of Sylvester v
Astroska [1959] 3 All ER 642. That was a case on a notice under section
146 of the Law of Property Act 1925 which gave notice of intended forfeiture by
the landlord on grounds, first, of dilapidations and, second, of a breach of a
covenant not to underlet.
There was in
fact no covenant to underlet in the lease in question, and the notice therefore
was plainly inapposite so far as that was concerned. The question 5 was whether
inclusion in the section 146 notice of bad claims destroyed its efficacy in
relation to good claims, and it was held that it did not. It seems to me that a
different question is involved here which is whether,
substantially to the like effect of the statutory form, and I hold that it was
not.
Miss Joanne
Moss, who appeared for the appellant, submitted that the differences between
the notices served and the form were, when considered individually and
collectively, not material and that the notices were substantially to like
effect to the form in the regulations. The failure to include the ‘Act Quick’ warning
notice was of no consequence as the respondent had consulted solicitors in good
time. The appellant had disclaimed reliance on ground (f) of section
30(1) so that only ground (b) of section 30(1) was relied on in
opposition to the grant of a new tenancy. That being so, the omission of paras
(f) and (g) of note 4 and note 5 was irrelevant. Notes 6 and 7
were irrelevant since it was clear that the appellant did not have power to
compulsorily purchase and would not negotiate. Note 8 had no effect and its
omission was irrelevant. Note 9 was irrelevant in the circumstances of this
case because the respondents were legally advised and an explanatory booklet
would not have added anything.
Mr Adrian
Iles, who appeared for Trendtown, accepted in his skeleton submissions that the
notices would be valid, even though they deviated from the form in the
regulations, provided they gave the substance of the information required. He
submitted that the notices had to give the required information to enable the
recipient to deal with them in the appropriate way. Thus, omission of any part
of the form which was of substance, in the sense that the part omitted would
have helped the recipient, would mean the notices were not in a form
substantially to the same effect as the form. He submitted that the omission of
the ‘Act Quick’ warning notice by itself meant that the notices were not in an
appropriate form. The warning notice was in capitals and was stated to be
important. It explained the reason for the notice and what the recipient needed
to do. Further, despite the concession that the appellant did not rely upon
ground (f) of section 30(1), that was not the effect of para 5. Thus, to
deal with the notices, para (f) of note 4 was material, as was note 5.
Notes 7, 8 and 9 were also material. They were part of the prescribed notes and
were ‘requisite for informing [the respondents] of their rights and
obligations’.
The
regulations make it clear that the actual form must be used or a form
substantially to like effect. Thus, the comparison to be made is between the
notices served and the form, and it is immaterial that any addition or omission
had no material effect upon the actual recipient. Once the differences have
been ascertained, then the decision as to whether the two are substantially to
like effect will depend upon the importance of the differences rather than
their number or amount. Section 66 points to what is important, namely
informing the recipient of his rights and obligations under the Act. It follows
that a difference can only be disregarded when the information given as to the
particular recipient’s rights and obligations under the Act is in substance as
effective as that set out in the form. Matter that is irrelevant to the
recipient’s rights or obligations may be omitted as in such a case the notice
has given to the recipient information substantially to like effect as that in
the form. That statement of the law, I believe, is clear from the Act, the
regulations and authorities.
In Sun
Alliance & London Assurance Co Ltd v Hayman [1975] 1 WLR 177 an
old form of notice was served, but the Court of Appeal held that it was
substantially to the like effect as the new form. The court pointed out that
the appropriate comparison was between the old and new forms and that the fact
that the recipient was not misled was irrelevant. At p182F Stephenson LJ said:
as it seems
to me, what we have to do is to construe the few relevant words in the
regulations and in the two forms of notice, and to decide whether in their
ordinary significance the old words which were in fact used do mean
substantially the same as the new words which should have been used. If they do
not, then a notice in the old form is bad and cannot be validated because the
particular tenant on whom it is served is not prejudiced by any difference in
their meaning.
Lord Salmon,
at p185F was of the same view:
The fact that
in the present case the tenant was not misled is, of course, irrelevant. The
only difference between the two forms is that the 1967 form has the advantage
of following the exact words of the statute. The two forms are, however,
‘substantially to the like effect’.
In Tegerdine
v Brooks (1977) 36 P&CR 261* the landlord served a notice which
omitted certain of the notes included in the form prescribed in the 1957
regulations, as amended. The court compared the notice with the form and, at
p267, approved this dictum of Barry J in Barclays Bank Ltd v Ascott
[1961] 1 WLR 717:
*Editor’s
note: Also reported at [1978] 1 EGLR 33
It is clear
from the authorities which have been cited to me that the construction of this
notice should be a liberal one, and provided that the notice gives the real
substance of the information required, then the mere omission of certain
details or the failure to embody in the notice the full provisions of the
section of the Act referred to will not in fact invalidate the notice.
The court
accepted that it was immaterial whether the recipient was misled. However, they
held that the two notes that had been omitted were irrelevant as one related to
a notice where the landlord opposed the grant of a new tenancy, which was not
the case before the court, and the other to a case where there was uncertainty
as to who was the landlord, which did not arise in that case. As the omissions
were irrelevant, the notice was good. Cairns LJ, at p264 said:
I think that
what this court has to consider is whether in the circumstances of this case it
could properly be said that the form was substantially to the like effect as
the form set out by the regulations. In my view, it was, because there could be
no purpose in setting out in that notice notes which were irrelevant.
Later on he
said, at p266:
It is
immaterial whether the tenant has been misled. It is, however, in my opinion,
relevant whether the departure from the form prescribed is such as to be
immaterial to the whole of the facts of the case, and if it is, in my view,
such departure is not one which will render the notice a notice which does not
substantially conform with the regulations.
Roskill LJ was
of the same view. He said, at p266:
If, as Bridge
LJ said during the argument, a notice is incomplete or inaccurate in a relevant
respect, then it does not matter that the tenant has not been misled by that
inaccuracy. If, however, the omission or inaccuracy is wholly irrelevant, as
was the omission here of notes 4, 5 and 7, then a fortiori there can be
no question of the tenant being misled and I see no reason why we should hold
here that this was a bad notice.
The approach
to be adopted can be seen from this passage of the judgment of Bridge LJ, at
p267:
The question
is a short one of construction. Was the notice served by the plaintiff under
section 25 of the Act of 1954 a notice ‘substantially to the like effect’ as
the notice prescribed in Form 7 of the relevant Regulations? What is the
meaning of that phrase? I think that its meaning is: ‘Was the notice to the
like effect as to its substance?’ What, then, is the substance of such a
notice? This question is to be answered in the light of section 66(2) of the
Act, which provides:
Having set out
the section, he continues:
The
substance, then, of a notice given for any particular purpose and in any
particular circumstances under the Act is that which informs the recipient of
his rights and obligations under the relevant provisions of the Act. One can
test the argument for the respondent in this case by asking the question: ‘If
the omitted notes had been included, would they have formed any part of the
substance of the notice?’ The answer to that question is clearly ‘no’. To have
solemnly set out, as note 4 requires, all the grounds on which a landlord can
oppose the grant of a new tenancy in a notice in which the landlord has already
said that he will not oppose such grant in any event cannot be a matter of
substance; it would be wholly irrelevant.
Morris v Patel* came before Dillon LJ upon an application for leave
to appeal. It appears from the report that the differences between the
notice and the form were the omission of the ‘Act Quick’ warning notice and the
wording of the notes on the back. The judge held:
*Editor’s
note: Reported at [1987] 1 EGLR 75
The
substantive question for Judge Macnair to decide was whether the old Form 7 was
a form substantially to the like effect as the Form 1 of Schedule 2 to the new
regulations. He said that it was. It seems to me he was right and there is not
enough in this appeal to merit the granting of leave to appeal. Consequently,
this application is dismissed.
Dillon LJ had
earlier drawn attention to the absence in the notice of the ‘Act Quick’ warning
notice. He said that its absence had not had any consequences since the
plaintiff had consulted solicitors and had taken the appropriate steps
according to the timetable required by the Act. That was an observation which
was applicable to that case, but should not be understood as meaning that the fact
that a recipient had not been misled was relevant. What has to be compared is
the notice and the form, and the fact that a recipient may or may not have
consulted solicitors is irrelevant. If the notice is not the same as or
substantially to the same effect, it is invalid and it cannot be saved by
establishing that the recipient did not suffer any prejudice. Further, I do not
read the judgment as a decision that the ‘Act Quick’ warning notice is
irrelevant and can be omitted. For the reasons which I give later in this
judgment, I believe it is an important part of the form and any notice which
omits it is not substantially to like effect as the form.
In the present
case a comparison between the notices and the form shows the three differences
to which I have referred. In my view, they are such that it cannot be said that
the notices are substantially to like effect as the form. The notices stated
that the landlord would oppose the grant of a new tenancy on the grounds in
paras (b) and (f) of section 30(1) of the Act. I am prepared to
assume, as submitted by Miss Moss, that they would be read as being alternative
grounds of opposition, but even so, the notices, to be substantially of like
effect to the form, had to contain information as to both subsections of
section 30(1). That was not the position. The excuse relied on by the
appellant, that it no longer opposed on one of the stated grounds, cannot be
accepted as excusing the omission of the notes relevant to that ground. The
recipients of the notices were not informed that the other ground was not
relied on and the information omitted was material to the notices as served.
The comparison to be made was between the notices served and the form. It
followed that the notices were invalid.
This, I
believe, can be confirmed by asking the question posed by Bridge LJ in Tegerdine
v Brooks. If the omitted notes had been included, would they have formed
part of the substance of the notice? Clearly so, in my view. The notices said
that the landlord would oppose on subsection (b) and (f) of
section 30(1). Note 5, which was omitted, formed part of the substance in
respect of one of those subsections.
I also cannot
accept that the omission of the ‘Act Quick’ warning notice was an immaterial
difference as submitted. A notice must be the same as the form or substantially
to like effect. The warning notice is in prominent lettering and appears to be
an important part of the form. It gives to the recipient an important
explanation of his rights and obligations, namely that the notice is intended
to bring the tenancy to an end and, if the recipient wanted to continue to
occupy the property, he should read the notes and act quickly. That is just the
sort of information that section 66(2) envisages as being in the form that
would be prescribed. Miss Moss also relied, to support her submission in this
respect, on the judgment of Dillon LJ in Morris v Patel. As I
have said, I do not believe that that judgment can be read in that way. If it
can, then, in my judgment, it was wrongly decided.
In my view,
the notices which were served were not in the required form and were invalid. I
have come to the conclusion that the judge came to the right conclusion, and I
would dismiss the appeal.
Agreeing, OTTON
LJ said: Business premises, if I may use the expression, come in all shapes
and sizes. The exhortation to act quickly in the upper case box is, to my mind,
of crucial importance in many business tenancies. One can well imagine a member
of an ethnic minority running a small garment accessory manufacturing business
in the Mile End Road in the East End of London. He does so as a small limited
company. Such a tenant might well be served with a notice under section 25 of
the Landlord and Tenant Act 1954. He may or may not have or have had in the
past a solicitor. It is conceivable that he might well not have access to legal
advice. In any event, he will be bewildered or overawed by receiving such a
notice. If he does not take appropriate and timeous action he may lose his
right either to a new tenancy or to compensation. However, if he is advised by
the ‘Act Quick’ box, as Aldous LJ so aptly describes it, he will read that he
can seek advice from the Citizens Advice Bureau, in which event he will have
access to lawyers who are experts in the law of landlord and tenant and he will
receive on the spot advice as to his rights, and he will be advised, if
necessary, to consult a solicitor, and such a solicitor with the requisite
expertise will be identified for him. If he does not take such a course,
inevitably he appears as a litigant in person acting on his own behalf before the
county court judge. By this time it is too late. He has lost his rights. The
court cannot help. The process has been a waste of time, both of the court and
the time of the litigant in person. As a consequence, the legal process is
clogged up and others have been deprived of access to justice. That is not the
case here, but this illustrates why parliament over the years has recognised
the need to protect business tenants of all kinds and has prescribed the form
such as the notice should take. Section 66(2) of the Act provides:
Where the
form of a notice to be served on persons of any description is to be prescribed
for any of the purposes of this Act, the form to be prescribed shall include
such an explanation of the relevant provisions of this Act as appears to the
Secretary of State requisite for informing persons of that description of their
rights and obligations under those provisions.
The operative
word is ‘explanation’. In Tegerdine v Brooks, to which Aldous LJ
has referred, Bridge J said, at p267:
The
substance, then, of a notice given for any particular purpose and in any
particular circumstances under the Act is that which informs the recipient of
his rights and obligations under the relevant provisions of the Act. One can
test the argument for the respondent in this case by asking the question: ‘If
the omitted notes had been included, would they have formed any part of the
substance of the notice?’
The answer to
the question in the instant case is, to my mind, undoubtedly in the
affirmative. The omission of the ‘Act Quick’ box from this notice cannot, by
any stretch of the imagination, be said to be substantially to the like effect
as if the box were in the notice, nor can it be contended that it is immaterial
or irrelevant because the tenant had access to or had instructed solicitors.
For these reasons I, too, would dismiss the appeal.
Also agreeing,
SIR RICHARD SCOTT V-C
said: The question whether the form of notice served is substantially to the
same effect as the prescribed form is a question to be answered primarily by
comparing the language of the served form with the language of the prescribed
form. Tegerdine v Brooks, however, is Court of Appeal authority
for the proposition that the notice as served may omit parts of the prescribed
form that are simply irrelevant to the rights and obligations of the recipient
of the notice. To the extent that Morris v Patel suggests that
the court can disregard an omission if the consequences of the omission turn
out to be negligible, it is not, in my opinion, sound law. On the facts of the
present case, the deputy judge was quite right in concluding that the form of
notice as served on July 2 1996 by the appellant, undeniably not a notice in
the prescribed form, was not substantially to the same effect. The appeal
therefore must be dismissed.
Appeal
dismissed with costs.
