In its decision in Gateway Housing Association v The Personal Representatives of Mohammed Nuruj Ali (1) and Delara Begum (2) [2020] EWCA Civ 1339, the Court of Appeal resolved the thorny issue concerning service of a copy of the Notice to Quit (“NTQ”) on the public trustee as well as the personal representatives (PRs). 

The Court of Appeal has held that, provided that the copy of the NTQ is served on the Public Trustee before the original NTQ served at the property expires, it validly complies with S. 18 Law of property (Miscellaneous Provisions) Act 1994 and ends the tenancy on the date on which the original NTQ expires.

Jatinder Bhamber of Capsticks Solicitors LLP and barristers Nicholas Grundy QC and Victoria Osler of Five Paper were successful on behalf of the landlord Gateway Housing Association (“Gateway”).

Background of the case

A joint tenancy had been granted to Mr Ali and his wife Mrs Nessa in 1998. Mrs Nessa died in 2014, and Mr Ali became the sole tenant by survivorship. That “used up” the one succession allowed by parliament and the contract. Mr Ali then died in 2018. The claim was defended by Ms Begum who said she had married Mr Ali in 1990.

The Notice to Quit

Gateway served a NTQ addressed to the personal representatives of Mr Ali and sent it by first class post on 15 October 2018 to the property itself. The NTQ was deemed to have been served on 17 October.

The NTQ required the tenants to deliver up possession of the property after a four-week period (specifying 12 November) or, “if later, a day on which a complete period of your tenancy expires next after the end of four weeks from the service of this notice”.

The 12 November date could not work, as it was less than 4 weeks away but, relying on the wording of the saving clause, the notice expired either on 18 or 19 November.

The copy to the public trustee

Gateway sent a copy of the notice to the public trustee by first class post on 18 October, accompanied by the requisite form NL (1) and the fee. Deemed service would have been 22 October. 

The public trustee later said the application for registration was received on 30 October.  If that was a separate notice it would have expired, relying on its saving clause, on 2 December 2018.

The case

Ms Begum raised various defences including challenging the validity of the NTQ.  She argued that there were two notices, one to the personal representatives and one to the public trustee.  As they gave different expiry dates, she argued the claim should be dismissed.

In the County Court, the Deputy District Judge agreed with those arguments and dismissed the claim for possession, relying on an unreported decision by Luba J in a case called Pavey v LB Hackney from 2017. In that case, he held that it must be clear to the recipients of the notices when they determined the tenancy.

Permission to Appeal was granted by the Deputy District Judge and it was Ordered that the appeal ‘leapfrog’ straight to the Court of Appeal.

The appeal

Gateway raised four grounds of appeal and the barristers for Ms Begum opposed the appeal. They said that the NTQ to the PRs and the public trustee were both required, both had to expire on the same date and the recipients must both be able to work out what that date was.

When Gateway pointed out the practical difficulties of this, the defence said that the notices could be sent on the same day and, if the landlord was worried about them being received some time later, as was the situation in this case, the landlord could arrange for personal service on the public trustee. The Court of Appeal thought that was “impractical and unrealistic” and rejected the suggestion that there were two notices that had to be of the same form and effect.

The Court of Appeal agreed with Gateway’s third ground of appeal, finding the following:

1. The original Notice served on the Personal Representatives of the deceased is the operative notice; and
2. Provided that the copy is served on the Public Trustee before the original Notice expires the copy is validly served and the landlord has complied with S. 18(1)

The appeal was allowed, although the case was sent back to the County Court to deal with rest of the issues raised by Ms Begum in her defence.

Conclusion

The Court of Appeal solved the issue by requiring landlords to serve the NTQ on the personal representatives at the property. Before that expires, they must have served a copy on the public trustee (along with the Form NL (1) and the fee).

We would advise that it is safest to serve both on the same day, although it is not required.

How can Capsticks help?

Our specialist housing team is working to ensure that we are right beside our clients every step of the way. Our experts are on hand to advise on all aspects of housing management, including complex succession disputes, possession claims, ASB, county court injunctions, gas, electrical and fire safety issues, income recovery, removing squatters, sub-letting, fraud, disrepair, abandonment, and judicial reviews.

If you have any queries around what is discussed in this insight, or the steps that you can take in any given case, please speak to Jatinder Bhamber, Helen Gascoigne, or any of your contacts at Capsticks to find out more about how we can help.