Q&A: Tackling technicalities and typos

Hannah Turner and Justin Bates answer a landlord’s query about the validity of a section 21 notice

Question

I am a director of a landlord company, which let several flats on assured shorthold tenancy agreements. I recently instructed the property manager to sign and serve a notice on one of our tenants under section 21 of the Housing Act 1988 seeking possession of the property. The tenant failed to vacate the property and possession proceedings were issued. The tenant is seeking to defend these proceedings on the basis that neither the section 21 notice nor the certificate given under section 213 of the Housing Act 2003 (providing prescribed information about the tenancy deposit scheme) by me at the outset of the tenancy were executed in accordance with section 44 of the Companies Act 2006. Is this defence likely to succeed? I have also spotted that the section 21 notice served on 7 January 2022 stated in error that court proceedings would not begin until after 27 March 2021 (rather than 2022). Is this fatal to my claim for possession?

Answer

No. In light of the Court of Appeal decision in Northwood (Solihull) Ltd v Fearne and others [2022] EWCA Civ 40; [2022] EGLR 12, the tenant is unlikely to succeed on a technical defence of this nature as the relevant statutes do not require either document to be executed by a company under section 44 of the 2006 Act in order to be valid. The typographical error is unlikely to be fatal either, as a reasonable recipient would have understood the intended expiry date of the section 21 notice was 27 March 2022.

Explanation

In Northwood, the tenant similarly defended possession proceedings on the basis that the notice served under section 8 of the 1988 Act and the certificate had not been executed under section 44 of the 2006 Act. The certificate had been signed by a director of the landlord company and the section 8 notice was signed by a managing agent, as the “landlord” rather than “landlord’s agent”.

Section 44 of the 2006 Act states that a company executes a document by:

1. Affixing its common seal (relatively rare in practice); or
2. Signature on behalf of the company by either:
   (a) two authorised signatories (a director and/or secretary of the company); or
   (b) a director of the company in the presence of a witness attesting the signature.

The Court of Appeal disagreed that the relevant statutes required the landlord to execute either document under section 44 of the 2006 Act and held that they were both valid. It found that:

• Section 8 of the 1988 Act does not require the notice to be signed and merely requires the landlord to serve notice in the prescribed form. The general position applies, and the notice will be valid if the agent signing the notice in the landlord’s name had been duly authorised by the landlord to do so.
• The certificate was served before the Deregulation Act 2015 came into force and, at the time of service, section 212(9) of the Housing Act 2004 specified that references to a landlord included a person acting on behalf of the landlord. Even though this section was disapplied by the 2015 Act, the court considered it “unpalatable” that the certificate was valid at the time of service and invalidated by the retrospective provisions of the 2015 Act. The court therefore interpreted the legislation broadly to hold that the certificate complied with the statutory requirements and was valid. The court also held that, even if it was wrong on this point, (a) the certificate had been signed by a person authorised to do so on behalf of the landlord and (b) contained all the prescribed information required, therefore fulfilling the statutory purpose it was required to fulfil.

Following Northwood, the section 21 notice and the certificate are likely to be held valid and the technical defence raised by the tenant is likely to be dismissed:

• While a section 21 notice was served here instead of a section 8 notice, section 21 of the 1988 Act does not require the notice to be signed either and merely requires the landlord to give the prescribed length of written notice before an order for possession can be sought.
• Assuming the section 21 notice and the certificate contained the prescribed information, on the facts provided, you and the property manager appear to have been authorised to sign the documents on behalf of the landlord and the general position will likely apply – the signing and giving of both documents by you and the property manager will be treated as if they had been given and signed by the company. It may be worth making a short witness statement to accompany the claim, confirming that the signatory had the relevant authority, but this is not obligatory.

In respect of the typographical error, this is also unlikely to be fatal on the basis that a “reasonable recipient” would have understood the intended date of expiry of the section 21 notice was 27 March 2022. The Court of Appeal confirmed this approach in Pease v Carter and another [2020] EWCA Civ 175; [2020] EGLR 15, holding that (a) a reasonable recipient would regard a similar error as an obvious typographical error and (b) despite the error, the section 8 notice still served its statutory purpose of providing enough time for the tenant to get their affairs in order, by taking advice, paying the arrears, or finding alternative accommodation. Given the analogous facts, it is highly likely the court would take the same approach here.

It may be worth checking what the covering letter accompanying the section 21 notice said. Such letters typically summarise the effect of the section 21 notice and set out the date for possession. If it gave the correct date, then that further supports the “reasonable recipient” point noted above.

This article was first posted on the Estates Gazette on 7 June 2022.