Leasehold enfranchisement — Leasehold Reform, Housing and Urban Development Act 1993 — Notice claiming new lease — Validity — Notice signed by attorney under power of attorney — Whether notice valid — Whether section 42 notice requiring personal signature of tenant
The appellant tenant held a lease of a flat in a building owned by the respondent landlord. In October 2000, a notice was served on the landlord, under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993, claiming a new extended lease of the flat. The notice was signed by the tenant’s son, acting under a power of attorney granted in 1998. The landlord served a counternotice, contending that the initial notice was invalid on the ground, inter alia, that the notice was not signed in the correct form. In the court below, the judge held that the notice was invalid. The tenant appealed.
Held: The appeal was dismissed. The words of section 99(5)(a) of the 1993 Act are very clear; a personal signature of the tenant is required in the case of a section 42 notice. The notice was not so signed and was therefore invalid.
The following cases are referred to in this report.
Bevan v Webb (Inspection of Books); sub nom Bevan v Webb [1901] 2 Ch 59, CA
Clauss v Pir [1988] Ch 267; [1987] 3 WLR 493; [1987] 2 All ER 752
Hyde v Johnson (1836) 2 Bing NC 776 Viscount Chelsea v Hirshorn [1998] 2 EGLR 90; [1998] 20 EG 130
Whitley Partners Ltd, Re (1886) LR 32 Ch D 337
Yenula Properties Ltd v Naidu; sub nom Naidu v Yenula Properties Ltd [2002] EWCA Civ 719; [2002] 42 EG 162; [2002] 3 EGLR 28, CA
This was an appeal by the tenant, Mrs Tingay, from a decision of Judge Morgan in Staines County Court in proceedings by the landlord, St Ermins Property Co, for a declaration under CPR 8.
Philip Jones (instructed by Mackrell Turner Garrett) appeared for the appellant; Timothy Walker (instructed by Paton Walsh Laundy) represented the respondent.
Giving judgment, LLOYD J said:
[1] This appeal, from an order of Judge Morgan in Staines County Court, made on 25 February, concerns the validity or otherwise of a notice given under section 42 of the Leasehold Reform, Housing and Urban Development Act 1993.
[2] The claimant, respondent in this court, is the landlord in respect of a first-floor flat at 10 Hill Court, Wimbledon Hill Road, London SW19. The defendant appellant is the tenant of that flat under a lease, whose term was 60 years, less a few days, from 25 March 1975, the lease being dated 14 May 1976 and originally granted to her and her late husband.
[3] The defendant asserts that she has occupied the flat as her only, or principal, home for almost all the 10 years up to the date of the relevant notice, which was 11 October 2000, and, I dare say, in fact, since the date of the lease. Her status as a resident was, I understand, to be in issue before the county court judge, and I am told that he would have found that issue in her favour.
[4] In March 2000, quite elderly at the time (she is now less than a month short of her 90th birthday), the defendant moved out into other accommodation, where her needs could be better attended to. In 1998, she executed an enduring power of attorney, giving general authority to act on her behalf to her son and her daughter, who could act jointly and severally.
[5] The lease is one to which the provisions of the 1993 Act, as regards the compulsory grant of a new lease, apply. A notice was given, under section 42 of the Act, to exercise the right of an individual tenant to acquire a new lease. It was dated 11 October 2000, and it was signed on behalf of the defendant by her son, acting under the power of attorney.
[6] The claimant served a counternotice, taking four points, of which one was that the notice did not appear to be signed in the correct form. On 16 February 2001, it commenced these proceedings by a Part 8 claim form, seeking a declaration that the defendant had no right to acquire a new lease, and also a declaration that the notice was invalid or defective.
[7] The proceedings came to trial, with no evidence on behalf of the landlord, and, on behalf of the tenant, a statutory declaration by the son, a witness statement from the tenant herself, and a witness statement, supplemented by oral evidence, from a solicitor. I have seen a note of the judgment in respect of the point as to the validity of the notice.
[8] Essentially, the judge followed a decision of Judge Cowell in West London County Court, which is reported as Viscount Chelsea v Hirshorn [1998] 2 EGLR 90. He held that the notice was not valid. He gave permission to appeal because the point was not covered by authority higher than the county court. It is a short point, but a somewhat puzzling one, and has been very ably and economically argued before me. As a general proposition, things that can be done by an individual may be done either personally or by a duly authorised agent. That is true under the common law generally, and under statute. There are, however, exceptions. In some cases, the provision that allows for, or requires, the thing to be done also prescribes that it must be done personally and not by an agent. In other cases, the nature of the thing is such that it requires personal skill or discretion, and cannot be delegated.
[9] There was cited to the judge, and to me, a passage from Halsbury’s Laws to that effect, from para 3 of the title on Agency, in vol 1(2). So far as the scope of the agency created by a power executed under the Enduring Powers of Attorney Act 1985 is concerned, section 3(2) of that Act provides that a power of attorney, such as the present, confers, subject to various immaterial provisions, authority to do, on behalf of the donor, anything that the donor can lawfully do by an attorney. Therefore, there is no problem as regards any limitation of the authority of the attorney, but the question is still whether the thing in |page:54| question is something that can be done by an attorney, or, rather, something that can only be done personally.
[10] Judge Cowell held that the service of a notice under section 42 is in the latter category. Judge Morgan followed that decision, and, for reasons that I will explain, I find myself constrained to hold that they were right.
[11] I must outline briefly the scheme of the 1993 Act. Part I of the Act created, first, a right of collective enfranchisement in the case of tenants of flats, and, second, an individual right for the tenant of a flat to acquire a new lease. The tenant must be a qualifying tenant, as an individual tenant of a flat on a long lease at a low rent, and must satisfy a residence condition. I am over-simplifying the ingredients of being a qualifying tenant, but no more so than is necessary for the present purposes.
[12] Such a tenant has the right, under section 39, to acquire a new lease of the flat upon payment of a premium. The right is exercised by serving a notice under section 42, and, because that is the notice that is at issue in the present case, I must read parts of the section:
(1) A claim by a qualifying tenant of a flat to exercise the right to acquire a new lease of the flat is made by the giving of notice of the claim under this section.
(2) A notice given by a tenant under this Section, (“the tenant’s notice”), must be given —
(a) to the landlord, and
(b) to any third party to the tenant’s lease.
(3) The tenant’s notice must —
(a) state the full name of the tenant and the address of the flat in respect of which he claims a new lease under this Chapter and
(b) contain the following particulars.
[13] (Then various matters are set out that are required so that the landlord can consider the basis of the claim to be a qualifying tenant and entitled to acquire a new lease.)
(c) specify the premium, which the tenant proposes to pay in respect of the grant of the new lease…
(and various other matters)
(d) specify the terms which the tenant proposes should be contained in any such lease;
(e) state the name of the person (if any) appointed by the tenant to act for him in connection with his claim, and an address in England and Wales at which notices may be given to any such person under this Chapter; and
(f) specify the date by which the landlord must respond to the notice by giving a counter-notice under section 45.
[14] Then there is a provision in subsection (4), which I do not need to read. Subsection (5) says that the date specified in the tenant’s notice, in pursuance of subsection (3)(f), must be a date falling not less than two months after the date of the giving of the notice. I do not need to mention subsection (6), but subsection (7) says:
Where a notice under this section has been given with respect to a flat and —
(a) that notice has been withdrawn, or is deemed to have been withdrawn, under or by virtue of any provision of this Chapter, or
(b) in response to that notice an order has been applied for and obtained under section 47(1)
no subsequent notice may be given under this section with respect to the flat within the period of twelve months beginning with the date of the withdrawal or deemed withdrawal of the earlier notice or with the time when the order under section 47(1) becomes final (as the case may be).
And I need not read subsections (8) or (9).
[15] Before the date specified in the notice, the landlord must serve a counternotice. This is under section 45, and it must comply with one of the following requirements. Either it may state that the landlord admits that the tenant had, on the relevant date, the right to acquire a new lease of his flat, or it must state that, for reasons specified in the counternotice, the landlord does not admit that the tenant had such a right on that date, or it must contain such a statement as is mentioned in (a) or (b), but state that the landlord intends to make an application for an order under section 47(1) on the ground that the property is to be redeveloped.
[16] If the right is not admitted, the landlord then has two months in which to start proceedings under section 46. Section 46(1) is in the following terms:
Where —
(a) the landlord has given the tenant a counter-notice under section 45, which (whether it complies with the requirement set out in subsection (2)(b) or (2)(c) of that section) contains such a statement as is mentioned in subsection (2)(b) of that section, and
(b) the court is satisfied, on an application made by the landlord, that on the relevant date the tenant had no right under this Chapter to acquire a new lease of his flat,
the court shall by order make a declaration to that effect.
[17] There are other circumstances in Part I of the Act under which a tenant may give notices, and, without going into any of the detail, I mention only one, a notice of withdrawal under section 52. If the tenant’s notice is valid, and the procedure under the Act is properly complied with, section 56 obliges the landlord to grant a new lease to the tenant, although there is, as one would expect, provision for determination of the terms of such a lease if there is any dispute.
[18] The critical provision for the present purposes is in section 99, which deals with notices. Subsection (1) provides that any notice required or authorised to be given under Part I: (a) shall be in writing; and (b) may be sent by post. I can pass over the other subsections until subsection (5):
Any notice which is given under Chapter I or II by any tenants or tenant must —
(a) if it is a notice given under section 13 or 42, be signed by each of the tenants, or (as the case may be) by the tenant, by whom it is given and
(b) in any other case, be signed by or on behalf of each of the tenants, or (as the case may be) by or on behalf of the tenant, by whom it is given.
[19] Section 13 is the equivalent of section 42 in terms of initiating the process of collective enfranchisement.
[20] Mr Timothy Walker, for the tenant, submits, and I agree, that if section 99(5)(a) stood on its own, nothing in it would carry an implication that the notice to be signed by the tenant cannot be signed on behalf of the tenant by a duly authorised agent. There is nothing of personal skill or discretion in the giving of a section 42 notice.
[21] The position would be much as it is under many other aspects of landlord and tenant legislation. This sort of point has been considered in many contexts within that statutory regime, or, perhaps I should say, those statutory regimes. The latest case of which I am aware is a case called Naidu v Yenula Properties Ltd [2002] EWCA 719*, decided by the Court of Appeal on 23 May 2002, where the point at issue was the service of a notice on the tenant, rather than by the tenant, but much the same considerations apply. In [38] to [43], the Court of Appeal said that, despite the importance of the notice, there was nothing in the legislation to require personal service on the tenant rather than on a duly authorised agent. I should say that that was not a case cited to me by counsel. I do not criticise them in any way. I did not refer them to it because it is simply an example of a general proposition, which is not in dispute.
—————————————————————————————————-
* Editor’s note: Reported at [2002] 3 EGLR 28
—————————————————————————————————-
[22] Mr Walker cited to me Re Whitley Partners Ltd (1886) LR 32 Ch D 337, which was concerned with the signature of a company’s memorandum of association under the Companies Act 1862, and also Bevan v Webb [1901] 2 Ch 59, in relation to the right of inspection of partnership books and accounts under the Partnership Act 1890, both of them decisions of the Court of Appeal.
[23] The argument in Whitley, in favour of a requirement of personal signature, was supported in the Court of Appeal by reference to an old case, Hyde v Johnson (1836) 2 Bing NC 776, decided on Lord Tenterden’s Act, the Statute of Frauds Amendment Act 1828. |page:55|
[24] Cotton LJ explained and distinguished that case in Whitley, in these terms, at p339:
The Appellant contends that as nothing is said in the statute about signature by an agent, these expressions must mean that the signature is to be affixed by the subscriber himself. In support of this, Hyde v Johnson is referred to. That case, I think, was decided on the special ground that the enactment which the Court was then considering was one of a series of enactments which made a distinction between a man’s signing by himself and signing by an agent, and it was therefore considered that where signature by an agent was not mentioned the Act required signature by the man himself.
[25] And he says that that may be quite right, but goes on to distinguish that statute from the one being considered: the Companies Act 1862. Bowen LJ made the same point at p341.
[26] A similar point survives to the present day in section 53(1) of the Law of Property Act 1925, which, of course, is derived from the Statute of Frauds, where subsection (1)(a) and subsection (1)(c) both expressly provide for a writing signed either by the person in question or by his agent, thereunto lawfully authorised, whereas section 53(1)(b) requires that the matter in question be manifested and proved by some writing signed by some person who is able to declare such trust or by his will, and therefore does not permit signature by an agent. As it happens, maybe in consequence of Hyde, Lord Tenterden’s Act was amended in 1856 to allow signature by an agent.
[27] Mr Walker also cited to me Clauss v Pir [1988] Ch 267, a decision of Mr Francis Ferris QC, as he then was. He held that the obligation to swear an affidavit verifying a list of documents, under rr 3 and 5 of Ord 24 of the Rules of the Supreme Court, was intrinsically personal, and was not something that could be performed by an attorney.
[28] Mr Walker submitted that, in considering whether a given statutory provision requires a personal signature, or permits signature by an agent, one must, of course, start with the terms of the statutory provision read in the context of the relevant Act as a whole, but that one must also consider the purpose of the provision and the nature of the act to be done.
[29] In principle, I have no difficulty in accepting that. I find it difficult to understand quite why a personal signature should be required in relation to a section 42 notice by an individual tenant. However, the words of the section are very clear. The distinction is drawn between notices under sections 13 and 42 and other notices. Why it is drawn, I do not know. Some reasons have been advanced, but I do not find it necessary to express any view as to the force of the suggested reasons. It seems to me that the words are clear and that whether there be good reasons, bad reasons or no reasons, the provision is clear. It is clearly deliberate, and the only way in which one could avoid giving the section its literal effect is by finding that it produces some anomaly so serious that it cannot have been intended.
[30] Mr Walker submits that the reading, which does not permit a signature by an agent, does produce situations that cannot have been intended. The tenant in the present case is not, in fact, incapable, but what if she were, or what if the tenant were mentally capable but paralysed so as to be unable, physically, to impose anything by way of a signature on a document?
[31] He submits that it cannot have been intended to exclude, uniquely under the 1993 Act, persons in that sort of category, who can perfectly well decide that they would wish to exercise the right under section 39, but are physically unable to comply with a requirement that they sign a document themselves. Equally, why should the section have been so designed as to exclude the possibility that a tenant who has become the subject of mental incapacity cannot have the benefit of this part of the Act exercised on his or her behalf, where necessary under the direction of the Court of Protection, because of inability, not of a physical kind, but of a mental kind, to impose a signature?
[32] Mr Philip Jones, for the landlord, says that it is possible to avoid difficulties of these sorts. What one could do would be to assign the lease to one or more trustees, who would hold on a bare trust for the former tenant, and who could serve a notice relying upon the qualifying residence of the beneficiary under the provisions of the Act, to which I have not been referred, but which are no doubt familiar from analogies in other such legislation.
[33] I debated, inconclusively, with counsel the question of whether a corporate trustee tenant could sign a notice under section 42, and, if so, how. It seems likely that it can, by an appropriate officer, but I do not need to, and do not, decide anything about that.
[34] However, whatever anomalies this provision may produce, or however much of a trap it may be for tenants and their advisers, I agree with Judge Cowell that the distinction drawn in the construction (in the sense of putting together, as opposed to reading) of subsection (5), between the method of signature of notices under sections 13 or 42, on the one hand, and other notices on the other hand, is so clear and so plainly deliberate that I cannot give section 99(5)(a) the meaning that it would have in isolation, and I must interpret it as requiring personal signature by the tenant, and not permitting signature on her behalf by anyone else, whether an ordinary agent or an attorney.
[35] A signature by an attorney is still a signature on behalf of the tenant, rather than one by the tenant, in the terms of section 99(5), and would therefore be valid for the purposes of section 99(5)(b), but not valid for the purposes of section 99(5)(a).
[36] I would add only that another respect in which a distinction was drawn in the legislation between a personal act and an act by an agent is to be found in the provision that I have mentioned, section 42(3)(e), under which the tenant’s notice may state the name of a person appointed by the tenant to act for him in connection with his claim.
[37] One might think it curious that the notice has to be given by the tenant, personally, in a situation in which the tenant has already decided that dealings in connection with the claim are to be with some other person, whether an attorney, a solicitor, valuer or whoever it may be, but the distinction is clear, and it is, of course, even clearer in the context of section 99(5) itself. I mention section 42(3)(e) because it shows that, in the wider context of the legislation, there is another provision that draws the same distinction.
[38] For those reasons, which are much the same as those of Judge Cowell in Viscount Chelsea, I hold that a notice under section 42 can be signed only by the tenant personally. A signature by an attorney is invalid, and I therefore dismiss this appeal.
Appeal dismissed.
