On the Seventh Day of Christmas...

...real estate disputes solicitor, Samuel Lane, considers the case of Pease v Carter [2020] EWCA Civ 175. This is the seventh in a series of twelve articles in which our real estate disputes team look back at the key real estate decisions of 2020*

Day 7 traditionally brings you 7 swans a swimming, however, we bring you case where a landlord was able to continue swimming (metaphorically, of course) despite serving a notice containing an error.

Executive summary

 In this case the Court of Appeal examined the effect of a typographical error in a notice of possession served pursuant to section 8 of the Housing Act 1988 (as amended). The Court ultimately found that the error did not invalidate the notice.

Facts

 The tenants entered into an assured shorthold tenancy agreement (“AST”) for a period of 6 months which expired on 1 August 2007. The tenants remained at the property after the end of the fixed term period within the AST and the tenancy continued as a periodic tenancy pursuant to the terms of the AST (insofar as possible). The tenants then stopped paying rent in April 2018.

On 7 November 2018, the landlord served a notice pursuant to section 8 of the Housing Act 1988 (as amended) (“Notice”), which stated that “[t]he court proceedings will not begin until after 26 November 2017” (our emphasis added).

The landlord submitted that it was clear that the date in the Notice was obviously intended to be 26 November 2018. The tenants contended that this was not clear enough and was therefore invalid.

Reasonable Recipient Test 

 The Court of Appeal held that when considering unilateral notices, Mannai v Eagle’s “reasonable recipient” test should be the starting point. Applying this to this case, the reasonable recipient of the Notices would have realised that the intended date was “26 November 2018”.

 The judge was satisfied that a reasonable recipient would have understood that “2017” was a mistake and given the wider context, must have been intended to read as “2018”.

The Court of Appeal accepted the submission of the covering letter for the Notice as evidence. This did not contain the error, and stated that “proceedings will not be issued before 26 November 2018”, which the court felt dispelled any further doubt. Therefore the reasonable recipient test was satisfied.

Compliance with the statutory purpose

 The Court of Appeal highlighted that section 8 of the Housing Act 1988 only requires the landlord to give the tenant notice that proceedings will not begin earlier than two weeks from the date of service. The Court considered the purpose of the provision was to give the tenant two weeks’ notice to consider its options and the Notice did this.  The Notice therefore complied with the statutory purpose.

Conclusion

 This case shows that a defect does not invalidate a notice, providing that the reasonable recipient would understand that there was an error and what was intended.

Furthermore, the error must not be in breach of the statutory purpose of the notice served.

In addition, this case showed that an error-free cover letter may be used as evidence in support of correcting a defective notice.

*yes, we know we are enjoying our twelve days of Christmas early, but we just couldn't wait!