This question was considered by the Court of Appeal in the recent case of Pease v Carter.
Background
The landlord served a Notice Seeking possession (NSP) under Section 8 Housing Act 1988 on the tenants on the grounds that they had rent arrears of over £3,500. The NSP was dated and served on 17th November 2018. It stated that court proceedings would not begin until after “26th November 2017”. Of course, this should have said “26th November 2018”. Section 8 requires that a NSP must include a date after which court proceedings can be started, which must be a minimum of 14 days after service of the NSP.
In the County Court
At the first hearing the District Judge gave permission to the landlord to amend the NSP to show the correct date. The tenants appealed on the grounds that the District Judge did not have the power to do this (which is correct, the District Judge did not).
On the appeal, the Circuit Judge held that whilst the error in the NSP was clear and it was obvious to a “reasonable recipient” of the NSP that the date was intended to be 26th November 2018, he NSP did not comply with the requirements of Section 8 and was therefore invalid. The landlord appealed to the Court of Appeal.
The Court of Appeal’s Decision
The Court of Appeal allowed the landlord’s appeal. Having reviewed previous case law on mistakes in notices, it held that:
- A statutory notice (such as a NSP) was to be interpreted by the court in the way that it would be understood by a “reasonable recipient” of the notice reading it in context.
- If a “reasonable recipient” could appreciate that the notice contained an error and would understand what the notice was trying to say, this is how the court would interpret the notice.
- The court still needed to consider whether, on this interpretation, the notice complied with the relevant statutory requirements.
- Even if a notice, on this interpretation, did not precisely comply with the statutory requirements, it may be possible for it to have “substantially the same effect” as the correct form of notice.
The Court of Appeal contrasted this case with a situation where a notice is wrong and a “reasonable recipient” could not be expected to appreciate that it contained an error and understand what it intended to say. For example, if this NSP said that proceedings would not begin until after 20th November 2018, this not comply with the requirements of Section 8 (see above) and there was no reason for the tenant to interpret this as meaning anything other than 20th November 2018.
Comment
This case is welcome news for landlords and means that a typographical error in a notice may not invalidate it. However, it not a “get out of jail card” for all mistakes. For instance, it won’t rescue the giving of short notice on a notice to quit or a section 21 notice (unless appropriate “saving words” are used) or in a rent review or break notice.
The Court of Appeal’s decision has implications beyond notices served under the Housing Act 1988. It is of general application to notices served in all property contexts including in relation to commercial and agricultural properties.
If you require any further information then please contact Ian Alderson, Partner and Head of Housing of Housing and Regeneration, on 0151 600 3317 or ian.alderson@brabners.com.