Pease v Carter [2020] EWCA Civ 175

Summary

The appellant, Captain Pease, had served notices under section 8 of the Housing Act 1988 (the Notice) on his tenants, Mr and Mrs Carter, on 7 November 2018. The Notice stated that court proceedings would not begin until after 26 November 2017 instead of 2018.

The Judge at first instance held that the error in the date meant that the Notice was invalid. The Court of Appeal disagreed, and held that the notice was valid on the ground that the reasonable recipient of the Notice would have realised that the intended date was 26 November 2018.

This case confirms that the principle in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] A.C. 749 – ie the reasonable recipient test applies to section 8 notices.

The facts

Captain Pease (the Landlord) let a property in Barnard Castle to Mr and Mrs Carter (the Tenants) initially on 1 August 2007. From April 2018 onwards, the Tenants fell into rent arrears. On 7 November 2018, the Landlord served the Notice, relying on grounds 8, 10 and 11.

Section 5 of the Notice states that "court proceedings will not begin until after: 26 November 2017". The purpose of this section is to inform the recipient of the expiry date of such a notice, which depends on which statutory ground is relied upon. In this instance, the relevant notice period was 2 weeks.

As the Notice was served on 7 November 2018, the Landlord had intended to refer to 26 November 2018, instead of 2017.

The Notice itself was signed and dated "7/11/18" and the covering letter stated that "[p]roceedings will not be issued before 26 November 2018".

On 27 December 2018, the Landlord issued possession proceedings and the first hearing took place on 30 January 2019.

First Decision by District Judge

The District Judge noticed that there was an error in the Notice and gave permission for the Landlord to amend the Notice and dispense with the need to re-serve.  The District Judge also held that the reasonable recipient test applied to section 8 notices.

County Court appeal

The District Judge's decision was appealed by the Tenants on the basis that the Judge did not have the power to amend the Notice. The Landlord accepted this point, but argued that the Notice was valid despite the error. The County Court Judge held that, even though the reasonable recipient of the Notice would have realised that the intended date was 26 November 2018, the reasonable recipient test did not apply to section 8 notices.

Arguments before the Court of Appeal

The Landlord appealed on the following grounds:

• The reasonable recipient test did apply to section 8 notices.
• Alternatively, the Notice was "substantially to the same effect" as the prescribed form of notice.

The decision

The Court of Appeal held that the reasonable recipient test did apply to section 8 notices and that a reasonable recipient would conclude that the intended date in the Notice was 26 November 2018.

Furthermore, it distinguished the statutory purpose of section 21 notices against section 8 notices. Whereas the former requires a landlord to specify a date of particular contractual significance, the latter gives a tenant 2 weeks' notice in order to deal with threatened proceedings by remedying the breach, seeking alternative accommodation or obtaining legal advice. Accordingly, the Notice served this statutory purpose and was held to be valid.

As it was held that the Notice was valid, the Court of Appeal did not deem it necessary to consider the second ground of the appeal.

Our comments

This decision is a helpful clarification for landlords, and demonstrates that a typographical error in such circumstances will be insufficient to invalidate a notice.

On these facts, the covering letter provided clarity and the Tenants were not put in any detrimental position because the possession proceedings were not commenced until 6 weeks after the Notice expired.

This case illustrates the potential pitfalls and time delays associated with obtaining possession if the formalities of notices are not fully complied with, and we always recommend that you obtain legal advice to ensure that you are properly advised.