Does an obvious mistake in a Notice of Seeking Possession invalidate it…or not? Steven Eccles reports on the lessons for housing associations and local authorities from an important recent ruling.
A residential landlord who wants to seek possession from an assured tenant, or from an assured shorthold tenant during the fixed term of their tenancy, has to start the process by serving a Notice of Seeking Possession that complies with Section 8 of the Housing Act 1988. Possession proceedings can’t be issued until such a Notice has been served and run its course.
The Notice must specify the grounds relied on and the period of notice that must expire before the landlord can issue possession proceedings. The minimum period of notice that must be given will differ depending on the grounds for possession relied on in the Notice (with no notice being required in cases of urgency). The statutory reason for the Notice is to ensure the tenant is given fair warning of the case against them before possession proceedings are started, and to allow the tenant to take appropriate action before being sued.
There is a prescribed form of Notice to use, and the 1988 Act tells you how much notice must be given. But if this is completed inaccurately, the Notice will be invalid.
So, imagine a case where a residential landlord serves a Notice of Seeking Possession on the tenant on 7 November 2018. Because of the grounds relied on, the landlord has to give at least two weeks’ notice of the date when possession proceedings could be issued. The landlord mistakenly puts that date in the Notice as “26 November 2017”, i.e. the year BEFORE the notice was given, and not “26 November 2018”. A clear and obvious error.
So is the Notice valid or not valid?
Pease v Carter 
This was precisely the scenario before the Court of Appeal in Pease v Carter  EWCA Civ 175 in February this year.
The Judges acknowledged that the law around mistakes in legal property notices had become confusing. This is mainly because it has evolved in recent years arising from a number of decisions in commercial and residential property cases, which were each decided on their own unique facts. We have therefore ended up with a situation where there seemed to be different rules for different types of case, with different legal principles applying depending on whether the notice in question was a contractual one (eg a notice exercising a break clause in a lease) or a statutory one (eg a Section 8 notice such as the one in this case). All very unsatisfactory.
The two main questions for the Court in this case were:
- First, should the Mannai test apply to Section 8 notices or not? The Mannai test is to ask whether the “reasonable recipient” of a notice containing a mistake would know that it was an error but still be clear what the person serving the notice meant. If so, the notice would be valid despite the error. If not, then not. Previous court decisions had suggested that this test applied to contractual notices, but not statutory ones.
- Second, even if the ‘reasonable recipient’ test does apply to a statutory notice, is it still invalid if the notice doesn’t comply strictly with the necessary statutory requirements? Or is it enough if the notice substantially achieves the statutory purpose?
The Court of Appeal’s decision
The Court’s decision: the Notice was valid.
The reasons were as follows:
- The ‘reasonable recipient’ test in Mannai does apply to statutory notices such as Notices of Seeking Possession
- In this case, it would have been obvious to the reasonable recipient that the landlord meant to refer to 26 November 2018 and not 26 November 2017 in the Notice and there would have been no confusion or ambiguity, and
- When the notice in question is a statutory one, it is still necessary to consider whether a statutory notice which contains a mistake fulfils the statutory purpose sitting behind it, and
- In this case, the statutory purpose was to ensure the tenant was given at least two weeks’ warning that possession proceedings were imminent. The reasonable recipient of the Notice would have interpreted it as doing that and so the statutory purpose was achieved.
We regularly see Notices of Seeking Possession that contain mistakes. This is understandable. Our social landlord clients are busy people, managing lots of different properties often with a different tenure mix and often with many different variations in the form of tenancy. They shouldn’t be expected to know the intricacies of the law on serving notices, and the law shouldn’t expect them to have to have the time or the skill to grapple with the complexities of property law before serving a Notice. In that sense, this decision is to be welcomed as a victory for common sense and pragmatism.
However, it is impossible for the Courts to give complete clarity on when a statutory notice will or won’t be valid, when the test is what the ‘reasonable recipient’ of the notice would make of the error. That will depend on a whole range of factors, including the type of notice being given, the nature of the mistake, the type of person who would typically receive such a notice, and the statutory reason underpinning the need to give the notice in the first place.
For that reason, the best approach is still to make every attempt to get notices right first time, every time. However, as mistakes will always happen, the best thing to do when an error is spotted is to pause before proceeding any further and to ask yourself:
- would it be obvious to the reasonable recipient of the notice what the notice was meant to say, and
- if so, has the underlying purpose for having to give the notice still been achieved despite the mistake.
This won’t always be easy to assess, and there will continue to be plenty of cases where the conclusion remains grey rather than black and white. For that reason, whilst this decision is helpful for busy landlords, it is not so helpful that there will never be a need either to start again by re-serving a valid notice, or to serve a second notice without prejudice to the validity of the first one. There is still very much a case for those practices continuing to be applied. However, there will now be cases where the principles in Pease will act as a helpful ‘get out of jail free’ card.