Failed Succession: Gateway Housing Association v Begum [2020] EWCA Civ 1339

Decision: Service of a Notice to Quit on the Public Trustee, in accordance with s18 Law of Property (Miscellaneous Provisions) Act 1994, is achieved provided that the copy of the Notice to Quit is served on the Public Trustee before the expiry of the original Notice to Quit.

The Court of Appeal has resolved the issues relating to the service of Notices to Quit where the landlord seeks to rely on the s18 Law of property (Miscellaneous Provisions) Act 1994 (“the Act”) and serves a notice on the Personal Representatives (“PRs”) of the deceased tenant at the property and sends a copy of that notice to the Public Trustee (“PT”).

The issue

Ending a periodic tenancy after a tenant has died creates difficulties and until the tenancy has ended the landlord cannot recover possession of the property. Furthermore, until the tenancy is ended the deceased tenant’s estate is liable for the rent, to the extent of the deceased’s assets (Youngmin v Heath [1974] 1 WLR 135).

s18 of the Act was introduced pursuant to Law Commission recommendations to resolve the problem of serving notices on deceased tenants; ss18(1) of the Act provide as follows:

(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if—

(a) it is addressed to “The Personal Representatives of” the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and

(b) a copy of it, similarly addressed, is served on the Public Trustee.

The intention behind this section, i.e., of making it easier for those entitled to serve notices where the intended recipient has died was thwarted in relation to notices to quit by the decision of HHJ Luba QC in LB Hackney v Pavey (2017) (unreported), but widely available to the legal representatives of occupants of premises the tenant of which had died.

In Pavey HHJ Luba QC held that both the original notice addressed to the PR’s of the deceased and the copy served on the Public Trustee (“PT”) had operational effect. HHJ Luba QC held that because the recipient of a notice had to be capable of calculating with certainty the expiry date of that notice, the date of expiry of both the original and the copy had to be the same date; this can of course cause a problem where the saving clause is used and the notices are not served on the same date. HHJ Luba went even further and held that the personal representatives had to be certain that the copy served on the PT had expired on the same date as the original notice served on them. Thus, a provision that was intended to make the requirements for service of notices less difficult in the event of the death of the recipient required service on the same day and affidavits to confirm that fact.

In the instant case before the Court of Appeal, Ms Begum’s representatives suggested that landlords could ‘manage the risk’ by instructing process servers to serve the copy of the notice on the PT.

Many social housing tenants have weekly periodic tenancies giving rise to the problem of terminating the tenancy on the tenant’s death.

The problem created by the decision in Pavey required resolution.

The Facts

In this case the original Notice to Quit (“NTQ”) was served on Mr Ali’s PRs on 17th October 2018. The copy of the NTQ was sent to the PT on 18th October with a deemed date of service of 22nd October 2018. In fact, the PT subsequently stated that it received the copy on 20th October 2020.

The NTQ stated that it expired on 12th November 2018, or by reference to a saving clause: i.e. if later, a day on which a complete period of your tenancy expires next after the end of four weeks from the service of this notice.

On the basis of a service date on the PRs on 17th October 2020 the original NTQ expired on Sunday 18th November 2018: i.e., the Sunday four weeks after service. On the basis of a deemed date of service of the PT of 22nd October 2018 the copy expired on 15th November 2018 and on the basis of an actual date of service of 30th October 2018 it expired on 1st December 2018.

Gateway issued proceedings for possession of the property. Mr Ali’s estate did not defend the claim; however, Ms Begum, who claims to be his wife by a bigamous marriage did defend them.

Following Pavey, as he was bound to do, the DDJ dismissed the claim, but he gave Gateway HA permission to appeal and leap-frogged the appeal to the Court of Appeal.

Gateway’s Case on the Appeal

Gateway argued that on a correct interpretation of s18(1) of the Act, the original NTQ served on the Personal Representatives was of operational effect and that the copy served on the Public Trustee was only for the maintenance of a public record. Gateway argued alternatively that the copy served on the PT could be served at any time, even after the original had expired, and also that good service was affected provided that the copy of the NTQ was served on the PT before the expiry of original NTQ served on the deceased person’s PR’s.

The Court of Appeal’s decision

The decision of the Court of Appeal is summarised in paragraphs 45 and 53 as follows:

  1. Looking at the Law Commission’s report more generally, we agree with the submission of Mr Grundy that the primary focus of the Law Commission was on the difficulties of owners of land being able to serve notices following the death of the person who would otherwise have been the recipient.
  2. All those difficulties are avoided if section 18 is interpreted to require service of the copy under section 18(1)(b) prior to expiry of the operative notice, as indeed occurred in the present case. That is not oppressive for the landlord, and it is consistent with the objectives of the Commission and the legislation.

The practical impact of the decision

Those entitled to serve notices can now be confident that they have complied with the service provisions for the NTQ at s18 of the Act if the copy of the notice sent to the PT is served on the PT before the expiry of the original served on the PRs of the deceased person.

Please note that if First Class Royal Mail postal service is used then the deemed date of service is two working days after posting, the presumed date of service can be rebutted by evidence that it was received later.

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