Guess who? Does a section 8 notice have to contain the landlord’s own name and address?

Kort Egan discusses Prempeh v Lakhany [2020] EWCA Civ 1422, in which the Court of Appeal considered whether a section 8 notice that is signed by the landlord’s agent and contains the agent’s details, must also include the landlord’s name and address.  

Where a landlord wishes to bring possession proceedings, section 8 of the Housing Act 1988 (HA 1988) requires the landlord to serve a notice in a prescribed form (section 8 notice) prior to doing so.

In Prempeh v Lakhany [2020] EWCA Civ 1422, a section 8 notice was served at the property in question. The notice stated that the landlord intended to apply to the court for an order for possession on the basis of Ground 8 (the mandatory ground) and Grounds 10 and 11 (the discretionary grounds). Such grounds are found in Schedule 2 to the HA 1988, and all of the grounds relied on relate to defaults in respect of the payment of rent.

The section 8 notice was signed by the landlord’s agent, not the landlord, and the notice gave the name, address and telephone number of the landlord’s agent. Nowhere in the section 8 notice did it refer to Mrs Lakhany, the landlord, by name or her address. The covering letter of the landlord’s agent did state that they acted for “your landlord, Mrs F Lakhany” but the letter also failed to give the landlord’s address.

The question raised in the appeal was whether a section 8 notice has to contain the landlord’s own name and address, as opposed to the name and address of the landlord’s agent, either in every case, or at any rate if the landlord wishes to rely on arrears of rent as a ground for possession.

If the face of a section 8 notice is silent as to the name, address or telephone number of the landlord, is the tenant left to play “guess who” as to the landlord and their details or does the law require the section 8 notice to include the landlord’s name and details?

The procedural history

A not unusual quirk of the case was the existence of a dispute as to whether the original tenancy agreement, a 2016 agreement, had been replaced by a further tenancy agreement, a 2017 agreement. The landlord denied that the 2017 agreement was ever entered into. The key difference between the agreements was that the 2017 agreement stated that the landlord was “O’Sullivan Property Consultants” and not Mrs Lakhany.

The first hearing of the claim took place at the County Court at Barnet. The duty solicitor represented the tenant, Ms Prempeh, and took three points:

1. The 2017 tenancy agreement was in force and hence the claim had been brought by the wrong party.
2. The section 8 notice was invalid as it was a “demand for rent” within the meaning of section 47 of the Landlord and Tenant Act 1987 (LTA 1987) and hence had to have the name and address of the landlord herself not just that of her agent.
3. The deposit had not been dealt with as required by the Housing Act 2004 and this acted as a partial defence to the money claim.

The Deputy District Judge rejected all three points. Having heard oral evidence from Mrs Lakhany’s brother-inlaw, who was an employee of O’Sullivan Property Consultants Ltd, the judge found that the 2016 tenancy agreement remained in force. The judge rejected the argument as to the validity of the section 8 notice and held that the tenant could pursue her claim in relation to the deposit separately. The judge therefore ordered that possession of the flat be given and that judgment be entered for the full sum sought.

The tenant appealed in respect of the judge’s findings as to the three matters set out above, and the appeal was heard by a circuit judge sitting in the County Court at Central London. The circuit judge held that:

1. The hearing in the County Court at Barnet did not constitute a fair trial.
2. The section 8 notice was not a demand for rent.
3. It was wrong in principle for the claim in relation to the deposit to be dealt with separately as it amounted (if valid) to a partial defence.

The appeal was therefore allowed and the circuit judge directed that the matter be listed for a new 1.5 day hearing.

Only the section 8 notice point was subsequently appealed to the Court of Appeal. The other matters remain to be decided at a new trial.

Grounds of Appeal

Counsel on behalf of the tenant advanced two grounds of appeal:

1. The landlord’s section 8 notice was a demand for rent within the meaning of section 47 of the LTA 1987 and as such it had to give the landlord’s own name and address. The failure to provide such details rendered the notice invalid.
2. The failure to include the landlord’s own name and address in the section 8 notice meant that the notice was not in the prescribed form required by section 8, and regulations made under it, and hence was again invalid.

Ground 1: Is a section 8 notice a demand for rent?

Section 47(4) of the LTA 1987 specifies that a “demand” means a “demand for rent or other sums payable to the landlord under the terms of the tenancy.”

The question was therefore whether the section 8 notice was a “demand for rent” for the purposes of section 47 of the LTA 1987.

The first argument dealt with by Nugee LJ in his judgment, with which Henderson LJ and David Richards LJ agreed, was the contention that the Statement of Rates Act 1919 (SRA 1919) contained a definition of a “demand for rent” and that said definition was applicable to the LTA 1987. The basis for that argument was that the SRA 1919 was in pari materia (that is, it dealt with the same subject matter as the LTA 1987). The definition in section 2 of the SRA 1919 stated:

“The expressions “demand for rent” and “receipt for rent” shall include a rent-book, rent-card and any document used for the notification or collection of rent due or for the acknowledgement of the receipt of the same.“

Nugee LJ rejected the contention that the Acts are in pari materia. He noted that the Acts did not deal with the same subject matter on similar lines. In particular, the SRA 1919 appeared to be designed to ensure that landlords who sought to pass on liability for rates made clear what they had paid, in order to avoid overcharging. In contrast, section 47 of the LTA 1987 appeared, by virtue of the Report of the Nugee Committee, to be aimed at improving communication between landlords and tenants.

Nugee LJ concluded that the SRA 1919 was of no assistance.

Nugee LJ therefore stated that the relevant question was simply whether the section 8 notice fell within the ambit of the phrase “a demand for rent“.

He stated that demand was an ordinary English word that is “easier to recognise than define” and that, whatever its precise scope, there had to be some communication from the landlord to the tenant requiring payment.

Counsel for the tenant did not argue that the section 8 notice was an express request for payment but rather that it was an implicit request, backed by the threat of the potential issuance of proceedings.

That suggestion was rejected as it conflated what the notice actually does with the potential practical consequences for the tenant. In particular, section 8(3) of the HA 1988 stated that the notice must be in the prescribed form “informing” the tenant: (i) that the landlord intended to take proceedings for possession, (ii) the grounds relied on by the landlord, (iii) the earliest date on which proceedings might be brought, and (iv) the date when the notice would lapse if no proceedings were brought.

The section 8 notice did not therefore “demand” that the tenant do anything with regards to rent but merely informed the tenant of the prescribed information.

Counsel for the tenant argued that the implicit message of the section 8 notice was “You must pay your rent or else I will take you to court“.

That argument was rejected because:

• Ground 8 only requires that at least two months’ rent be unpaid both at the date of service of the section 8 notice and at the date of the hearing. Even if the arrears were paid off immediately after the service of the section 8 notice, it was still possible for over two months of arrears to have accrued by the date of the hearing. A section 8 notice relying on Ground 8 was not therefore stating that the rent must be paid or the landlord would take the tenant to court but, rather, that the landlord intended to take the tenant to court and that the landlord would seek (and expect to obtain) possession if the tenant was two months in arrears at the date of the hearing.
• The section 8 notice also relied on Ground 11. Ground 11 is a discretionary ground that permits possession to be granted for persistently delayed rent payments, even if there are no arrears on the date that proceedings began. By relying on Ground 11 the landlord was not therefore demanding payment but was stating that there had been persistent defaults in paying rent and as a result the tenant was being taken to court.

In summary, the section 8 notice did not demand rent but, as stated in section 8(3) of the HA 1988, merely informed the tenant of the grounds relied on and the timeline to be followed in respect of any possession claim.

Ground 2: Does the prescribed form require the landlord’s own name and address to be specified?

The reference in section 8(3) to a notice in the “prescribed” form is by section 45(1) of the HA 1988 a reference to the form prescribed in regulations made by the Secretary of State by statutory instrument. The relevant regulations in force are the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (SI 2015/620), as amended. By regulation 3(c), the form prescribed for a notice under section 8 informing the tenant that the landlord intends to begin proceedings for possession of a dwelling-house let on an assured tenancy is Form No. 3
(Form 3).

The version of Form 3 that was relevant to the case has since been replaced but this did not affect the outcome of the appeal.

Form 3 stated that it was to be signed by the landlord or licensor or the landlord’s or licensor’s agent, and then provided space for the “landlord/licensor/joint landlords/landlord’s agent” to specify their name, address and telephone number. It was therefore expressly envisaged that a landlord’s agent could include their details rather than the landlord’s.

The tenant’s contention was that if the landlord’s agent included their details in Form 3, the landlord’s own details also had to be added. Nugee LJ found no basis for that contention and in particular noted that there was no space on Form 3 for such additional information to be included and there were no instructions for the landlord’s details to be included. Nugee LJ also noted that the forms were intended to be capable of being used by ordinary citizens without the benefit of professional advice, and so the court should be slow to recognise the existence of technical requirements that would not be apparent to an ordinary citizen upon reading Form 3.

Nugee LJ therefore concluded that Form 3 did not require the landlord’s own name and address in circumstances where it is signed by the landlord’s agent.

Conclusion

Counsel for the tenant argued that it was important for a tenant receiving a section 8 notice to know that proceedings were being threatened but also who was threatening them. The rationale behind that submission holds particular weight in cases like Prempeh where there is a dispute as to who the landlord in fact is. It is presumed that in most cases the tenant knows the identity and details of the landlord and so they will not have to “guess who” the landlord is. However, even in cases like Prempeh, the tenant could use the details included in any section 8 notice to make enquiries as to who the landlord was.

The submission that the tenant must know who was threatening proceedings was particularly unattractive in Prempeh since the covering letter to the section 8 notice expressly stated that the agent acted for the landlord, Mrs Lakhany. There was therefore no doubt as to who was seeking possession and as a result the point taken by the tenant was purely technical.

Kort Egan

This article first appeared in the Practical Law Property Litigation column.