Landlord and tenant — Notice to quit — Whether service of notice at premises valid service under section 196(5) of the Law of Property Act 1925 — Whether notice ‘required’ to be served by tenancy agreement
On March 5
1975 the plaintiff landlords granted a weekly tenancy to the second appellant.
In 1986 the first appellant went to live with the tenant. In 1990 the tenant
went to work in USA and the first appellant remained in the flat paying the
rent on the tenant’s behalf. By a notice to quit dated December 14 1992, the
council sought to terminate the tenancy; one copy of the notice was sent to the
tenant at the premises and the other to an address in USA provided by the first
appellant. In proceedings for possession of the premises, the county court made
an order for possession and dismissed the appellants’ contentions, inter
alia, that the tenancy had not been terminated. They appealed; the council
submitting that service of the notice to quit at the premises was a valid
service in accordance with section 196(5) of the Law of Property Act 1925.
196(5) of the Law of Property Act 1925 can only be valid service if the notice
is ‘required’ to be served by the tenancy agreement. As the tenancy agreement
did not so require, section 196(5) did not apply and the notice had not been
validly served.
The following
case is referred to in this report.
88
Berkeley Road, NW9, In re [1971] Ch 648; [1971] 2
WLR 307; [1971] 1 All ER 254
This was an
appeal by Mr Attwell and the tenant, Mr Donald, from a decision of Judge
Hordern in Central London County Court in possession proceedings brought by the
respondents, Wandsworth London Borough Council, against the appellants.
Steven
Fletcher (instructed by Ceres & Co) appeared for the first appellant; David
Daly (instructed by the solicitor to Wandsworth London Borough Council)
represented the respondents; the second appellant did not appear and was not
represented.
Giving the
first judgment, Glidewell LJ
said: This is an appeal against the judgment of Judge Hordern given in Central
London County Court on August 2 1994 when he ordered the defendants to give
possession to Wandsworth London Borough Council (‘the council’) of a
dwelling-house, 484 Garratt Road, London SW17, on or before August 31 1994 and
made orders for costs against both defendants. At the hearing of the appeal, Mr
Steven Fletcher of counsel appeared for Mr Attwell. Although a notice of appeal
had been entered also on behalf of Mr Donald, Mr Fletcher informed us that his
instructing solicitors, who had previously acted for Mr Donald, had no
instructions from him in relation to the appeal. Nevertheless they understood
that, through Mr Attwell, Mr Donald was aware of the hearing of the appeal. We
therefore thought it right to proceed with the hearing.
The following
facts were agreed or found by the judge. 484 Garratt Road, London SW17, is
owned by the council. On March 5 1975 the council granted a weekly tenancy of
the house to the second appellant, Mr Donald. On that date, Mr Donald signed a
document headed ‘Acceptance of offer of accommodation’ which identified the
property; said that the date on which his occupation with his family was to
start was April 14 1975; and recorded the ‘weekly charge’, ie rent, as being
£5.27 per week. The text of what is called the ‘The certificate of acceptor’
started with the words ‘I accept this offer of accommodation’. The document
made it clear that Mr Donald had read the ‘regulations as to occupancy of’ the
council’s houses and that a copy of those regulations had been given to him.
Mr Donald is
by occupation a musician with a band. From 1990, until a week before the
hearing in front of Judge Hordern, Mr Donald was working as a musician and
singer and living in the USA.
The first
appellant, Mr Attwell, is Mr Donald’s half-brother. In 1986 he went to live at
484 Garratt Road with Mr Donald. When in 1990 Mr Donald went to the USA, they
agreed that Mr Attwell should stay in the house as caretaker and pay the rent
due on Mr Donald’s behalf.
At that time
the housing manager in charge of the property on behalf of the council was a
Mrs Davey. She has since died. It is clear, however, from notes written by Mrs
Davey, which were produced in evidence before the judge without objection, that
in 1991 and 1992 she interviewed both Mr Attwell and, on at least one occasion,
Mrs Donald, and was on each occasion told that Mr Donald expected to return
soon to England and to the house. At that time no steps were taken to terminate
his tenancy.
In 1992 Mrs
Frost took over the management of the property on behalf of the council.
According to paras 5 and 6 of Mr Attwell’s defence in these proceedings, which
in an affidavit sworn in Brooklyn, New York, on May 16 1994 Mr Donald swore was
correct, on October 27 1992 Mr Attwell was interviewed by Mrs Frost. He then
told her that he was half-brother to Mr Donald, who had permitted him to live
at the premises from about 1986, that when Mr Donald went to the USA in 1990
he, Mr Attwell, had been left in occupation as a caretaker and Mr Donald was
still working in New York. Mr Attwell gave Mrs Frost an address for Mr Donald
in Hartford, Connecticut.
The council
thereupon sought to terminate Mr Donald’s tenancy by serving a notice to quit
upon him. The notice was dated December 14 1992, addressed to Mr Donald at 484
Garratt Lane, London SW17, and read:
For and on
behalf of … (‘the council’) I hereby give you notice to quit and to deliver
vacant possession to me or my agent on the 18 day of January 1993 of the
premises known as 484 Garratt Road, SW17, which you hold of the council as
tenant.
At the hearing
it was proved that the council served, or attempted to
of the notice to quit was left at 484 Garratt Road. Second, a copy was sent by
post to the address in Hartford, Connecticut, given by Mr Attwell as Mr
Donald’s address.
Thereafter Mr
Attwell remained in occupation of the property. Mr Donald did not return, nor
did he take any steps in response to the notice to quit.
On March 26
1993 the council started proceedings for possession against Mr Attwell by an
originating application under Ord 24 of the County Court Rules. The council
also started proceedings against Mr Donald for possession on the ground of
breach of the terms of the tenancy agreement by non-payment of rent. At those
proceedings an order was made for the amount of the arrears to be paid by Mr
Donald, but the claim for possession was adjourned generally. The claim for
possession in those proceedings has since been discontinued.
By his defence
in the present proceedings; Mr Attwell claims that Mr Donald was a secure
tenant of the premises; his tenancy has not been properly determined; and Mr
Attwell occupied by permission from Mr Donald.
About one week
before the hearing before Judge Hordern, Mr Donald returned to England. At the
commencement of the hearing he sought, and was granted, leave to be added as
second defendant in these proceedings. He adopted the same defence as Mr
Attwell.
At the
hearing, Mr Fletcher argued on behalf of Mr Attwell, and thus in effect on
behalf of Mr Donald, that:
1. Mr Donald’s
tenancy of the dwelling-house had not been properly determined;
2. Even if the
contractual tenancy had been properly determined, Mr Donald was still entitled
to remain in occupation as a secure tenant, because he was occupying as his
sole or principal residence by leaving his furniture and belongings there; and
3. Mr Attwell
had been granted a licence by the council to occupy the premises, which had not
been determined in accordance with section 5 of the Protection of Eviction Act
1977.
The judge
found against the defendants on all of these matters, and therefore made the
order for possession against which the defendants now appeal.
The same three
arguments are repeated in the grounds of appeal filed on behalf of both the
appellants. However, at the hearing Mr Fletcher no longer sought to argue
against the judge’s conclusion that Mr Donald was not a secure tenant if his
contractual tenancy had been determined, nor that he was holding over with the
council’s implied consent. The first and third arguments, however, Mr Fletcher
does pursue before us. It is convenient to deal first with the question whether
Mr Attwell had been granted a licence to occupy by the council.
As to that the
judge said in his judgment:
There remains
the question whether Mr Attwell has a licence which has not been determined in
accordance with section 5 of the Protection from Eviction Act. I have already
touched on that. As I have said, Mrs Davey was not, in fact, licensing him to
remain in the premises at all. She was permitting him to be an occupant who
would otherwise be an unauthorised occupant. She was doing so on the basis of
his assertion that Mr Donald was still the tenant and was returning to the
property shortly.
In other
words, it was clear to the judge, and I agree, that the evidence established
that Mr Attwell’s only right to remain in occupation of the premises was as Mr
Donald’s licensee. Once Mr Donald’s tenancy came to an end, if it did, then Mr
Attwell’s right to be in the property automatically determined. Thus, if Mr
Donald’s contractual tenancy has been determined, Mr Attwell in law has since
that time been a trespasser in 484 Garratt Road.
The main and
more difficult question in this appeal is whether Mr Donald’s contractual
tenancy was properly determined by service of the notice to quit dated December
14 1992 in the way I have described. At the hearing before the judge, Mr Donald
gave evidence, which could not of course be contradicted, that he had not
received a copy of the notice to quit. At common law a weekly tenancy such as
that under which Mr Donald was entitled to occupy 484 Garratt Road is
determinable by at least one week’s notice given by either party expiring at
the end of any week of the tenancy. However, by section 5 of the Protection
from Eviction Act 1977 at least a four-week notice is required. Since the
council cannot prove that Mr Donald received the copy of the notice to quit
posted to him in Hartford, they rely upon the service by leaving a copy of the
notice to quit at the house itself on December 18 1992. If this was effective
service, the notice was served more than four weeks before the date of
termination of the tenancy contained in it, January 18 1993. Thus the question
is, was service of the notice to quit by leaving it at the premises valid and
effective service? In his judgment the judge commented that the detailed terms
of the tenancy agreement had not been put before him and thus he did not know
whether there was a specific term of that agreement permitting service of a
notice to quit in this way. He said however:
I cannot see
what the local authority could possibly have done to give the notice more than
they did do, and it seems to me that giving a notice, as I say, cannot mean
that it must come to the attention of the tenant for that would lead to what
seems to me to be a wholly absurd result. It must at the very least mean to
take such steps as are available to the landlord to bring the notice to the
attention of the tenant … I am satisfied that the notice was given, that the
local authority took all steps which were available to them to give that notice
to the tenant, and in my view, that notice was effective to determine the
contractual tenancy.
That
conclusion of the learned judge is no doubt sound commonsense, but the question
is was it correct in law? For his argument that it was, Mr David Daly, for the
council, relies upon section 196 of the Law of Property Act 1925. So far as is
material, this section provides:
(1) Any
notice required or authorised to be served or given by this Act shall be in writing…
.
(3) Any
notice required or authorised by this Act to be served shall be sufficiently
served if it is left at the last-known place of abode or business in the United
Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be
served, …
(4) Any
notice required or authorised by this Act to be served shall also be
sufficiently served, if it is sent by post in a registered letter addressed to
the lessee, lessor, mortgagee, mortgagor, or other person to be served, by
name, at the aforesaid place of abode or business, office, or counting-house, …
(5) The
provisions of this section shall extend to notices required to be served by any
instrument affecting property executed or coming into operation after the
commencement of this Act unless a contrary intention appears.
If a notice is
of a kind which may be served under the 1925 Act, eg a notice severing a joint
tenancy under section 36, or a notice requiring breaches of covenant to be
rectified under section 146, it is a notice authorised to be served by the 1925
Act. Service of such a notice by leaving it at the last-known place of abode of
the lessee under section 196(3), or by registered post under section 196(4), is
therefore valid and effective service, even though the notice does not come to
the attention of the person to whom it is addressed: see eg In re 88
Berkeley Road, NW9 [1971] Ch 648. It is, however, agreed by counsel,
correctly, that a notice to quit is not a notice required or authorised by the
1925 Act.
The issue can
therefore be narrowed to the question, was the service of the notice to quit
valid service in accordance with section 196(5) of the 1925 Act? Section 196(5)
differs from the immediately preceding subsections in that it refers to
‘notices required to be served by any instrument affecting property’, but not
to notices ‘authorised’ so to be served. By section 205(1) of the Act, the
definition section, ‘instrument’ does not include a statute. It follows that an
argument that notice to quit was required by the Protection from Eviction Act
1977 is to no avail.
On the other
hand, in my judgment, the ‘acceptance of offer’ document was or contained the
essential terms of Mr Donald’s tenancy agreement and was an ‘instrument’ for
the purposes of section 196(5).
The question
can therefore be narrowed still further — was the notice to quit ‘required’ to
be served by the tenancy agreement?
decision in answer to this question, which seems surprising in relation to a
provision, which has now been in force for nearly 70 years and a situation
which must arise with some frequency.
The editors of
Woodfall’s Law of Landlord and Tenant, at p17/121, pose the question
without suggesting an answer when they say:
It is not
clear whether this (s196(5)) would apply to a notice to quit, service of which
is entirely voluntary.
Mr Daly, after
much research, has drawn our attention to several other expressions of academic
opinion. However, none of the authors or editors is confident that a written
tenancy agreement which does not expressly refer to the notice to quit,
‘requires’ such a notice to be served. Emmett on Title at para 26, p106
says
It is
doubtful, however, whether a notice to quit is ‘required’ to be served by a
lease creating a periodic tenancy.
The editors
then refer to an article in the Conveyancer in April 1952 in which the
author, Mr Montgomerie, expressed the view that, the section (s196(5)) applies
to a notice to quit mentioned in the document but not where the document merely
creates a periodic tenancy, although in a sense a notice to quit is required to
terminate such a tenancy’.
Thus, with the
benefit of such advice as we can glean from the textbooks and academic
opinions, but with no authoritative decision to guide us, we must seek to
answer the question as one of principle.
In my
judgment, a tenancy agreement which makes no express provision for the service
of a notice to quit to determine the tenancy does not ‘require’ such a notice
to be served. Thus in that situation section 196(5) does not apply.
I have
therefore reluctantly come to the conclusion that, although I think Judge
Hordern’s decision was activated by sound commonsense, it was not correct in
law. For these reasons I would allow this appeal and set aside the order for
possession granted to the council against both defendants.
The moral for
landlords is clear. If they wish to render valid and effective service of a
notice to quit by leaving it at the premises the subject of the lease, without
proving it came to the attention of the lessee, they must:
(i) make
express provision for such a method of service in the tenancy agreement; and
(ii) prove the
terms of the agreement in any action for possession following service of such a
notice.
Agreeing, Waite LJ said: I agree that the
‘acceptance of offer’ document constitutes an ‘instrument affecting property’
within the terms of section 196(5) of the Law of Property Act 1925. The use,
however, in the same subsection of the phrase ‘notices required to be served by
any instrument’ provides a plain indication that the subsection is only to
apply in cases where the requirement of service is one that appears explicitly
on the face of the instrument. Those words would not be apt to describe a case
where the requirement of service is merely implied at common law, or is
imported by statute, for example under section 5 of the Protection From
Eviction Act 1977. With the same regret as Glidewell LJ at having to depart
from the realism and good sense of the judge’s approach, I agree that section
196 must on that technical ground be excluded and would also allow the appeal
for all the reasons he gives, with which I am in full accord.
Appeal
allowed with costs.
