The Court of Appeal has handed down judgment in Prempeh v Lakhany  EWCA Civ 1422. The court considered 2 issues that have been raised against landlords recently in respect of s.8, Housing Act 1988 notices and confirmed, dismissing the appeal, that:
- a section 8 notice based on arrears of rent is not a demand for rent within the meaning of s.47, Landlord and Tenant Act 1987 and,
- Form 3 (the prescribed form of a section 8 notice) does not require the landlord’s own name and address to be provided. It is sufficient that the name and address of the person signing be provided, which may be, as in this case, the agent of the landlord.
What does this mean for landlords and tenants?
In the 12 months prior to the stay on possession claims, landlords, including social landlords, saw an increase in defences being raised based on who had signed the s.8 notice. Such a defence, if successful for a tenant, could wipe out any mandatory ground for possession where the court does not have a discretion to dispense with notice.
This judgment should provide assurance to such landlords that the signature requirements for a s.8 notice are those set out in the prescribed form in Regulation 3 of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015/620. As the Court of Appeal notes, Form 3 provides that the s.8 notice is to be signed and dated by the landlord or the landlord’s agent.
The judgment also confirms that a s.8 notice is not a demand for rent.
The judgment does knock out 2 “technical” defences for tenants who find themselves subject to a mandatory ground for possession where they may not have a substantive defence to proceedings.
Court of Appeal’s judgment
Ground 1 – is a s. 8 notice based upon rent arrears a demand for rent within the meaning of s.47 of Landlord and Tenant Act 1987?
The court noted that many grounds within schedule 2, Housing Act 1988 have nothing to do with rent arrears. The odd situation the argument on appeal would create is that some s.8 notices would be a demand for rent but other notices that relied on non-arrears grounds would not be. This could not have been Parliament’s intention.
Further, “demand” is an ordinary English word, not one with a technical legal meaning and the s. 8 notice said nothing about requiring payment. What a s.8 notice actually does is give certain information to the tenant as described within section 8 itself (see s.8(3), Housing Act 1988). It also gives the tenant a warning shot to put such matters right. The court said at :
“A s. 8 notice based on Ground 8 cannot be taken to convey the implicit message “Pay me the arrears or else I will take you to court”, as this would be inaccurate. The only accurate message that it conveys is “I am intending to take you to court; if you are still 2 months in arrears at the date of the hearing, I will ask for (and expect to obtain) possession.” That no doubt gives the tenant an opportunity to avoid judgment for possession if they are in a position to ensure that there are by the time of the hearing no, or insufficient, arrears outstanding. But I still do not regard it as appropriate to describe the s. 8 notice as requiring payment, and in my judgment it is not a “demand for rent” within the meaning of s. 47 of the 1987 Act”.
The notice in this case followed the statutory scheme. It was not a demand for rent.
Ground 2 – does a section 8 notice have to contain the landlord’s address?
Form 3 indicates where it should be filled in. Paragraph 6 of Form 3 provides the following instructions:
“To be signed and dated by the landlord or licensor or the landlord’s or licensor’s agent (someone acting for the landlord or licensor)….”
The argument on appeal appeared to be that where an agent signs the notice, not only does the agent’s address need to be set out but it should also contain the landlord’s name and address. The court commented that if it was right that the form requires the landlord’s own name and address to be given, even where an agent (who need not be a professional agent) has signed for the landlord, then “the form would be a trap for the unwary”.
The court held that a s.8 notice did not require the landlord’s own name and address in the case where it was signed by the landlord’s agent.