Readers might be interested in another example of the Court of Appeal upholding a notice despite the tenants attempts to claim it was defective – this time a section 8 notice.
Mr Yousaf let a property out to Miss Masih on an AST. When Miss Masih fell into rent arrears Mr Yousaf served a section 8 notice, followed by proceedings for possession. At the hearing possession was granted on the mandatory ground 8. So far so normal. The tenant applied to the court to set aside the possession order on the grounds that the section 8 notice was not in proper form. This matter then ended up in the Court of Appeal.
The tenant argued that the notice seeking possession had not complied with section 8.2 of the Housing Act 1988 in that it did not properly specify the ground that was being relied on.
The notice served on Miss Masih :
“Your landlord intends to seek possession on ground(s) 8 in schedule 2 to the Housing Act 1988 as amended by the Housing Act 1996, which read(s): that the tenant owed at least two months’ rent both when the landlord served notice that he wanted possession and still owes two months’ rent at the date of the court hearing”
Ground 8 in schedule 2 of the Housing Act 1988 in fact reads:
“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, at least two month’s rent is unpaid;
c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
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 Court of Appeal, in the earlier case of Mountain v Hastings 35 HLR 7 had already held that the grounds in schedule 2 may be validly specified in the notice in words that differ from the statutory language provided that the words are “adequate to achieve the legislative purpose of giving the tenant the information which the provision requires to be given in the notice to enable the tenant to consider what he should do and do that which is in her power to put things right and best protect her against the loss of her home”.
However in Mountain, the notice was defective as it had not included the requirement that the rent was unpaid at both the date of service and the date of the hearing and that “rent” meant rent lawfully due.
The tenant in this case tried to rely on Mountain on the basis that the notice was absent the phrase that “rent means rent lawfully due”.
Did it matter that the notice did not mention “rent lawfully due”? Lord Justice Floyd said [para 25]:
“In contrast to a statement that rent is unpaid, a statement in a section 8 notice that the rent was owed in my judgment is sufficient notice to enable a recipient to appreciate that it would be an answer to the claim to show that the rent was not lawfully due, thus the recipient of a notice using the word “owe” is aware that he or she must find some basis for showing that the rent is not owed”.
Floyd LJ was unable to find a case where rent might be owed but not lawfully due. He ended his judgment ( with which the other two C of A judges agreed) by quoting from the judgment in Mountain v Hastings:
“ ‘It is difficult to think of any good reason why a person given the task of settling a form of notice should choose to use words differently from those in which the Crown has stated in the schedule.’
That is and remains sound advice”
A section 8 notice which does not replicate the statutory wording is not necessarily defective, if the tenant can ascertain from it what the notice requires, and what s/he needs to do to maximise chance of keeping her home. In this case it was that rent was owed, and that the tenant needed to pay the arrears ( or counterclaim) in order for the rent not to be owing.
This decision seems to be very much from the Spencer v Taylor stable of Court of Appeal decisions and arguably represents a growing reluctance to find notices invalid on technicalities or hair splitting meanings of words.
That said, we would still recommend using the statutory wording. Why make things complicated when they need not be. Use the statutory wording and keep your possession proceedings to a five minute first instance hearing. Or better still hope that the tenant clears the arrears.
*How did it end in the Court of Appeal ?
After the original possession order was granted the tenant had made an application to set aside the possession order and stay the bailiff’s warrant. At the application hearing the judge concluded that he did not have the power to set aside a possession order, but granted possession to appeal.
The Court of Appeal also considered the point as to whether the judge hearing the set-aside application had been right not to set aside a possession order made in the presence of both parties. Floyd LJ cited a stream of authorities on the subject. Where the defendant did not attend the hearing at which possession was made, then possibly ( see London Borough of Hackney v Findlay EWCA ), but otherwise if “all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done in the context of an appeal”. See Collier v Williams  EWCA Civ 20.