This is the second post on the case of Kassam v Gill. In the first post we concentrated on whether the possession order should be struck out as an abuse of process. In this post we will concentrate on the second ground of appeal which is whether the notice seeking possession under Ground 8 is invalid.
For a summary of the Background of the case please see our previous post here.
This is quite an important issue in its own right because without a valid section 8 notice, the court cannot order possession under the various grounds for possession set out in Schedule II of the Housing Act 1988.
The Gills were relying on Ground 8 for significant rent arrears. The prescribed form (Form 3) of Ground 8 is as follows:
- Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing
(a) if rent is payable weekly or fortnightly, at least eight weeks rent is unpaid
(b) if rent is payable monthly then at least two months rent is unpaid
(c)if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears
(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears
and for the purpose of this ground “rent” means rent lawfully due from the tenant
The notice served by ‘Remove a Tenant’ (RaT) set out some of the text of Form 3 but omitted the words highlighted in bold above. In the printed instructions on Form 3 it states:
Give the full text (as set out in the Housing Act 1988 as amended) of each ground which is being relied on. Continue on a separate sheet if necessary.
Furthermore, at paragraph 4 of the notice it stated:
Give a full explanation of why each ground is being relied on; Grounds 8 and 10; The rent of £1750 is due monthly in advance as per a tenancy agreement commencing on 21st November 2016 and at the date of service of its notice the tenant owes more than 2 months’ rentand is a total of £10520.39 in arrears.
The question put before the court was are the words underlined above at paragraph 4 enough to adequately achieve the legislative purpose of the Act? The court examined 2 previous cases and decided that it did not and in fact the notice was invalid in respect of Ground 8.
The notice at paragraph 4 only states the arrears at the date of service. It did not contain the assertion that rent was lawfully due or owed at the date of the hearing. It was because this assertion was omitted that the court concluded that the notice on Ground 8 was invalid.
Unfortunately, for the landlord a further hearing was set for the claim to proceed on the basis of discretionary grounds 10 and 11. Therefore, while their claim remains alive it is significantly weakened.
Many agents are very familiar with the wording of Section 8 and Section 21 notices and indeed many have received training to ensure that errors like this are not made. Indeed, there is little excuse for this type of mistake as the government provides a completely accurate form of section 8 notice for anyone to download. However, whether this was an administrative error or due to a lack of training the consequences for landlords can be costly. Notices should therefore always be double checked before they are sent out and where there is any doubt legal advice sought prior to sending the notice. Where agents are using notices which they keep on their computer system care needs to be taken that these have not been amended from the correct “standard” version.