Residential tenancies: notices

Citation

Waterson, G. and Lee, R. (2000), "Residential tenancies: notices", Property Management, Vol. 18 No. 2. https://doi.org/10.1108/pm.2000.11318bab.009

Residential tenancies: notices

Drew-Morgan v. Hamid-Zadeh (1999) 26 EG 156

There have been relatively few cases reported in relation to the question of notices under section 48 of the Landlord and Tenant Act 1987, possibly because any initial omissions to serve such a notice can normally be remedied in advance of any relevant legal proceedings.

Section 48(1) of the 1987 provides that "A landlord of premises to which this part [of the Act] applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant", and by way of incentive, section 48(2) goes on to provide that "... Any rent or service charge otherwise due from the tenant to the landlord shall (subject to sub-section (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that sub-section".

As Judge LJ observed in the instant case:

In summary, before the notice required by section 48(1) has been furnished to the tenant, whatever the actual state of the tenant's account, rent is deemed not to be due, "for all purposes", words that are unequivocal and comprehensive. Therefore the landlord is not entitled to recover the rent contractually due under the tenancy nor to succeed in proceedings that require him to establish that the tenant is in arrears or has persistently failed to pay the rent ... Relief from the consequences of non-compliance with section 48(1) may be obtained by service of an appropriate notice: see Dallhold Estates (UK) Pty Ltd v. Lindsey Trading Properties Inc (1994) 17 EG 148. However, until the notice is furnished, the right to rent, and relief on the basis of non-payment, is in abeyance."

In this case, in possession proceedings at first instance a submission had been made that the alleged arrears of rent were not in fact lawfully due at the time of the hearing because no section 48 notice had been served. The judge at first instance had rejected this submission on the basis that "the rent is lawfully due because contractually it is due to be paid", a ruling which in the circumstances was erroneous.

However, although no formal notice of the landlord's address for service had been served upon the tenant prior to proceedings, two documents had been served: the notice of intention to seek possession under section 21 of the Housing Act 1988 gave the name of the landlord and an address for her "c/o 300 Upper Street, Islington, London, N1 2TU", which on the same document was identified as the address of the landlord's agent, who was named and whose representative had signed the document; similarly the application for possession gave the landlord's full name and address and, in the words of Judge LJ "plainly relates to service in relation to the instant proceedings ..."

The court referred to the judgement of Stuart-Smith L. in Rogan v. Woodfield Building Services Ltd 919950 27 HLR 78; (1995) 1 EGLR 72; (1995) 20 EG 132 where he had said that:

The mischief at which the section was aimed was the problem created when the landlord's identity was not known and/or the tenant did not know of an address within the jurisdiction to which notices could be sent and proceedings served ...

Consistently with that approach, said Judge LJ, the court in Rogan had held that compliance with section 48(1) if the 1987 Act could be achieved simply "by the inclusion of the landlord's name and address in the lease or tenancy agreement itself, if it was so stated without limitation or qualification. By further development" he went on, "in Marath v MacGillivary (1996) 28 HLR 484 this court concluded that a notice served for the purposes of section 20 of the 1988 Act (notwithstanding that it was not a valid notice for the purposes of section 20 itself, because it was served after rather than before the "assured tenancy" was entered into) provided sufficient notice for the purposes of section 48(1)..."

The court went on to consider whether the notice served under section 21, and/or the application for possession were sufficient to serve the purposes of section 48(1): the former was sufficient; the latter, however, since it was expressed to give the landlord's address for service solely in connection with the then current possession proceedings, was not.