A section 8 notice is not necessarily invalid due to an obvious error held the Court of Appeal in Pease v Carter.
Mr Pease served a section 8 notice with cover letter on 7 November 2018 on his tenants for rent arrears. The cover letter stated correctly that proceedings would not be issued before 26 November 2018. However, the notice stated incorrectly that possession proceedings would not be commenced until after 26 November 2017.
In the county court the judge held that the notice was invalid giving the following reasons:
- Applying the test laid down in Mannai Investment in respect of break clauses, “2017” was an obvious typographical error which a ‘reasonable recipient’ would have realised.
- However, the ‘reasonable recipient’ test did not apply to notices because the statutory requirements for completing the date on a section 8 notice were precise and clear, were not particularly difficult for landlords to comply with and there was no serious consequences for landlords if a defect was identified because a new notice could simply be reserved. The statutory requirement was that these notices expired 2 weeks after they were served. These notices did not and were therefore invalid.
- The court had no power to dispense with the service of a section 8 notice served under ground 8 for rent arrears.
Without the court’s permission to dispense with the service of a section 8 notice on ground 8 the landlord would have needed to serve the notice again and commence possession proceedings once the notice had expired. The landlord elected to appeal.
The issue before the Court of Appeal was whether the ‘reasonable recipient’ test could be applied to section 8 notices and it decided it could. In summary the court concluded:
- The section 8 notice should be interpreted in accordance with Mannai Investment, that is that the notice should be interpreted by what a ‘reasonable recipient’ would expect. Specifically the HL held in Mannai, “the construction of the notices had to be approached objectively, and the question was how a reasonable recipient would have understood them, bearing in mind their context; that the purpose of the notices was to inform the landlord of the tenant’s decision to determine the leases in accordance with the break clauses; that a reasonable recipient with knowledge of the terms of the leases and of the third anniversary date would have been left in no doubt that the tenant wished to determine the leases on 13 January 1995 but had wrongly described it as 12 January”.
- If a ‘reasonable recipient’ appreciates that a notice contains an error, such as the date, and they would appreciate what meaning the notice was intended to convey, then that is how the notice should be interpreted.
- It remains necessary to consider whether the notice complies with the statutory requirements which involves considering the reasons for the requirements.
- Even if a notice does not comply properly with the statutory requirements it may be possible to conclude that the notice is ‘substantially to the same effect’ as a prescribed form if it fulfils the statutory purpose. This is so even if an error relates to information inserted or omitted and not to the wording used instead of the prescribed language.
Therefore, a typographical error in a section 8 notices may not invalidate it if a reasonable tenant would understand what the notice means. This is especially so if a notice includes a cover letter which leaves the tenant in no doubt as to what the notice should say. A notice should also meet the statutory requirements but where it fails to do so precisely this error may be excused if the notice is still ‘substantially to the same effect’ as a correct notice so that it fulfils the statutory purpose.
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