Under section 8 of the Housing Act 1988 (as amended) a Landlord who wishes to seek possession of a tenanted property let on an Assured Tenancy, Assured Shorthold Tenancy or Assured Agricultural Occupancy must serve a “section 8 notice”. This is in a prescribed form and requires the Landlord to specify the ground/s upon which possession is being sought. The notice also requires the Landlord to indicate the earliest date on which court proceedings can be brought.
Section 8 provides that:
Notice of proceedings for possession.
(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless –
(a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section and the proceedings are begun within the time limits stated in the notice in accordance with subsections (3) to (4B) below; or
(b) the court considers it just and equitable to dispense with the requirement of such a notice.
In the recent case of Pease v Carter, the Court of Appeal had to consider whether an error in the section 8 notice was fatal to the claim for possession. The Landlord had served notices of proceedings for possession under s8 on the tenants on 7 November 2018. The notices stated that the court proceedings would not begin until after “26 November 2017” rather than 2018. The County Court held that this was an obvious typographical error, and that the reasonable recipient of the notices would have realised that the intended date was 26 November 2018. The County Court nevertheless held that the error in the date meant that the notices were invalid.
The Court of Appeal considered the authorities and drew out the following points:
- A statutory notice is to be interpreted as it would be understood by a reasonable recipient reading it in context.
- If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted.
- It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements.
- Even if a notice, properly interpreted, does not precisely comply with the statutory requirements, it may be possible to conclude that it is ‘substantially to the same effect’ as a prescribed form if it nevertheless fulfils the statutory purpose. This is so even if the error relates to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.
On this basis the Appeal Court was willing to hold that the incorrect date was not fatal to the efficacy of the notice and upheld the appeal. The Court stated that the reason why ‘2017’ was an obvious typographical error is that, read in context including the explanatory notes, it would make no sense for a date earlier than that of the notices to be specified. Thus, the reasonable recipient would realise that something must have gone wrong. The reasonable recipient would be aware that a common form of typographical error is typing an adjacent digit to that intended.
The Court of Appeal went on to say that if there was any doubt about this conclusion, it would be dispelled by the letters accompanying the notices which said:
“Proceedings will not be issued before 26 November 2018 but will be issued within 12 months of service of the notice.”
Such covering letters may be taken into account in determining how the reasonable recipient would interpret a statutory notice. The Court of Appeal concluded that the purpose of the requirement for at least two weeks’ notice is to give a tenant time to take steps to deal with the threatened proceedings, for example by trying to pay off arrears of rent, taking advice, obtaining representation and/or seeking alternative accommodation. Did the notices serve that purpose? Given that the date of 26 November 2017 was an obvious typographical error and that a reasonable recipient would have understood that the intended date was 26 November 2018, the Court held that the notices did serve the statutory purpose of giving the tenants at least two weeks’ warning of the commencement of proceedings.
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