The Issue
When a tenant dies, the contractual tenancy survives, meaning possession of the property cannot be obtained from the (non-succeeding) current residents until that tenancy is terminated by notice to quit. But how is that process carried out if probate (or letters of administration) have not yet been granted?
The answer lies in section 18 of the Law of Property (Miscellaneous Provisions) Act 1994 provides that the Public Trustee has to be served as well. But how does this section actually work and what does it mean?
The Case
The Court of Appeal has handed down judgment in the case of Gateway Housing Association v (1) The personal representatives of Mohammed Nuruj Ali (deceased) (2) Delara Begum [2020] EWCA Civ 1339 to answer that question.
The Law
Section 18 of the Law of Property (Miscellaneous Provisions) Act 1994 provides 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.
(2) The reference in subsection (1) to the filing of a grant of representation is to the filing at the Principal Registry of the Family Division of the High Court of a copy of a grant of representation in respect of the deceased's estate or, as the case may be, the part of his estate which includes the land in question.
(3) The method of service provided for by this section is not available where provision is made—
(a) by or under any enactment, or
(b) by an agreement in writing,
requiring a different method of service, or expressly prohibiting the method of service provided for by this section, in the circumstances.
What about where there is saving clause? In Pavey v London Borough of Hackney (unreported) 21 November 2017 HHJ Luba QC concluded that the saving clause in the notice to quit must operate when the copy was received by the Public Trustee.
However, a notice to quit must be clear as to the date on which it determines the tenancy - if a reasonable recipient of the notice cannot determine from it the date on which the tenancy ends or will end, then it fails for want of clarity
So, Pavey concluded, the date of determination of the tenancy had to be clear both to the personal representatives (from the original notice), and to the Public Trustee and anyone who may legitimately have an interest in the validity of the notice or otherwise (from the copy). As the dates were so different on the facts of Pavey, the notice failed for lack of clarity.
The Facts
Mr Ali was an assured tenant before his death in August 2018. The property remained occupied. The landlord served a notice to quit at the property in October 2018, addressed to Mr Ali’s personal representatives, and on the Public Trustee shortly thereafter. The problem was that the first notice expired on 18 November and the second on 2 December.
At first instance, the judge relied on Pavey and held the notice invalid for lack of clarity.
The Appeal Result
The Appeal succeeded on one ground and the matter was remitted to the county court for consideration of the second respondent’s other defences.
The Court of Appeal overruled Pavey, finding that HHJ Luba QC had mischaracterised the significance of the notice being sent to the Public Trustee; that notice was only a copy of the notice served at the property. There was no legislative requirement for the Public Trustee to keep a record of when the copy was received.
The notice served at the property was the operative document.
Further, the effect of s.18(1) was that provided the copy of the original notice was served on the Public Trustee was served before the expiry date of the original notice, the original notice was valid to determine the tenancy.
Clarity
I would have said that this decision provides clarity, but Pavey has previously been thought to be correct by many and it is understood from the Respondent’s counsel’s social media that an appeal to the Supreme Court is to be pursued.