Landlords: does an incorrect date make a section 8 notice invalid?
Landlords, if you’ve served a section 8 notice on your tenant and the date is wrong, you might be concerned that this makes it an invalid section 8 notice.
However…the recent Court of Appeal case of Pease v Carter and others 2020 may still allow you to gain possession of your property.
In the case of Pease, it was found that, despite the landlord having inserted the wrong date as the earliest date after which Court proceedings could be brought, the section 8 notices seeking possession, were valid.
The section 8 notices seeking possession under the Housing Act 1988, were served on 7 November 2018 and based on the prescribed form. Rather than stating that court proceedings would not begin until after 26 November 2018, the notices stated the wrong year; 2017.
The landlord was unsuccessful at the County Court, as it was held that the notices were invalid, due to the defective date.
The Court of Appeal allowed the landlord’s appeal and found the notices were valid.
In reaching its decision, the Court of Appeal confirmed that the reasonable recipient test in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd 1997, also applies to section 8 notices.
In Mannai, the tenant had served break notices expiring one day too early. The House of Lords held that the notices were valid because a reasonable recipient with knowledge of the terms of the leases would have been in no doubt that the tenant wished to determine the tenancy on the correct date.
The leading judgment in Pease from Lord Justice Underhill, applied the test in Mannai and concluded the following:
- “A statutory notice is to be interpreted in accordance with Mannai…, that is to say, as it would be understood by a reasonable recipient reading it in context.
- If a reasonable recipient would appreciate that the notice contained an error, for example as to date, and would appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted.
- It remains necessary to consider whether, so interpreted, the notice complies with the relevant statutory requirements. This involves considering the purpose of those requirements.
- Even if a notice, properly interpreted, does not precisely comply with the statutory requirements, it may be possible to conclude that it is ‘substantially to the same effect’ as a prescribed form if it nevertheless fulfils the statutory purpose. This is so even if the error relates to information inserted into or omitted from the form, and not to wording used instead of the prescribed language.”
In Pease; “The reasonable recipient would conclude that the person who typed the Notices had mistakenly typed ‘7’ rather than ‘8’… and would have no reason to think that the day or month were erroneous.”
The covering letters, which accompanied the notices supported the above interpretation. In addition, the notices also served the requisite period by giving the tenants at least two weeks’ warning of the commencement of proceedings.
This will be a welcome read to landlords, however a word of caution; in the case of Pease the landlord complied with the requisite 2 week period when entering the date, but had mistakenly entered a 7 instead of an 8. Had the landlord entered a date less than the requisite period, then it is likely that the outcome would have upheld an invalid section 8 notice.
This case is unlikely to be a catch all to save landlords when the wrong dates have been entered in section 8 and section 21 notices (statutory notices). Landlords must ensure that the dates entered in section 8 and section 21 notices are correct, to ensure that there can be no argument regarding the validity of the notice. If there is an error, this can lead to arguments regarding validity, which in turn can lead to unnecessary delays in gaining possession.