Whilst we would all like to think that we have wonderful checking processes when drafting notices, occasionally an error will slip through, usually a typo.  The effect of that error can range from nothing at all, mildly embarrassing, to downright expensive.  The subject of this update, Captain Pease, the landlord of a residential premises let on an assured shorthold tenancy, found his ‘typo’ to be the latter and whilst, in the end, the result went his way, getting there would not have been cheap or, frankly, cost effective.

The case in question is Pease v Carter & Anor (2020) and was concluded this year in the Court of Appeal.  It is, or perhaps should have been, a relatively straight forward case relating to the termination of a residential tenancy where the tenant was alleged to have significant rent arrears.  However, the effect of the ruling has implications in respect of statutory notices served in all aspects of property and block management.

The Facts

Captain Pease had a tenant who had failed to pay rent.  In November 2018, the Captain drafted and served upon the defaulting tenant a notice under Section 8 of the Housing Act 1988 (“the Act”).  The notice, which is in prescribed form, properly explained that he would be pursuing a claim for possession under grounds including ground 8 (2 months’ rent arrears) as set out in Schedule 2 of the Act, in light of the arrears. 

A Section 8 notice requires a landlord to stipulate a date after which possession proceedings would commence in default of the tenant remedying the breach - in this case paying the arrears.  The minimum timeframes are specified under the Act and in this case was a two week notice period. It goes without saying that the date cannot precede the date of the notice.  However, due to a simple typographical error, the Captain (or perhaps his agent!) stipulated the date after which possession proceedings could commence as 26 November 2017, as opposed to 2018.   As a result of this error, the County Court dismissed the resulting possession claim on the basis that the Section 8 notice was invalidated by the error.

The Captain appealed on the basis that the error was not sufficient to invalidate the notice (or proceedings) as any reasonable recipient would have realised what the notice had been intended to say.  His argument relied on the principles set down in the case of Mannai Ltd v Eagle Star Insurance Co Ltd (1997). 

The principles in Mannai were that where a notice contains an error, the effect of the error should be assessed on an objective basis, having regard to how a reasonable recipient would understand the notice and thus if, with knowledge of the background, the reasonable recipient would understand the purpose of the notice, then the error should have no effect.

Taking Mannai into account the Court of Appeal considered that: 

• The date error was an obvious typographical error; 

• The explanatory notes on the Section 8 notice prescribed form, when read together with the letter accompanying the notice (which contained the correct date), meant that it should have been obvious to the reasonable recipient what the date in the notice was to have been; 

• But for the error on the date, the notice was otherwise fully compliant with the statutory rules and provided the tenant with the information required to enable them to obtain advice and assistance on what the effect of the notice would be. 

Lessons learnt

Clearly, the objective is to ensure that proper procedures are in place to thoroughly check any notice sent to a tenant or leaseholder so that it will not contain an error.  However, where something does slip through it would be wise to approach the matter along the following lines:- 

• Consider carefully the effect of scrapping the faulty notice and re-serving a corrected one. 

In the case of Captain Pease, had he served a new notice, the total effect would likely have been little more than a 15 day delay in the issue of the claim for possession based upon a valid notice (whereas Captain Pease has had to wait over 12 months for the matter to be decided due to an error which was easy to rectify).  Clearly, the picture will be different if the notice period is a lot longer than two weeks so each case will need to be considered on its own facts;

• Consider the likelihood of  a dispute and then consider the first point above again.

Whilst this does involve an element of “crystal ball gazing”, the likely reaction of the recipient can at least be assessed and if the risk of dispute is low or high then a practical and commercial decision can be made based upon that assessment.

• Consider the effect (in both  costs and time) of the delay in either re-serving a corrected notice or the potential dispute that may arise from relying upon the faulty notice.

This is once again a risk analysis process and may direct you back to the first point above again.

This case is an important one as it provides more clarity on what cases, and to what extent, the principles of Mannai will apply in respect of errors made on statutory notices.  The safe approach in any matter is to try not to place yourself in a position where you need to rely on arguing that Mannai assists you.  If you do find yourself in that position then get competent advice before firing ahead based upon that defective notice. 

For any further information about the above case or the drafting of notices in general, please contact Kevin Lever on 01435 897297 or Kevin.Lever@kdllaw.com.

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