Nicholas Grundy QC and Victoria Osler discuss the service of notices relating to land on a deceased, as considered in Gateway Housing Association v PRs of Ali
Gateway Housing Association Ltd v The Personal Representatives of Ali (deceased)  is the first decision of an appellate court as to the requirements of service of notices under s18, Law of Property (Miscellaneous Provisions) Act 1994 (the Act), relating to notices affecting land where the recipient has died. It overturned the decision of HHJ Luba QC in Pavey v Hackney London Borough Council (2017). Under Pavey it was very difficult for the server of the notice to satisfy the requirements of s18 and although it was a decision of a chief justice it nonetheless had a significant impact. Most possession claims are tried in the County Court, usually by district judges, on whom Pavey was not binding but, as HHJ Luba QC is a housing law expert of some renown, other chief justices and district judges were likely to find his decision persuasive.
Requirements of s18 service following Gateway
Service for the purposes of this section is satisfied provided that the copy of the notice sent to the Public Trustee is served before the expiry of the original notice served on the personal representatives of the deceased.
Mr Ali was the assured tenant of 45 Pier Street, Isle of Dogs. His landlord, Gateway HA (GHA), is a housing association. Mr Ali died on 10 August 2018. His wife, and former joint tenant, Mrs Ali had predeceased him. So, Mr Ali was a successor to the tenancy with no further right of succession from him. After his death the tenancy was a common-law tenancy vested in Mr Ali’s estate.
On 15 October 2018 GHA served a notice to quit (the NtQ) on Mr Ali’s personal representatives (PRs) at the premises and on 18 October 2018 sent a copy of the NtQ (the PT copy) to the Public Trustee (PT); there was a deemed service date on the PT of 22 October 2018.
GHA was relying on the service provisions in s18 of the Act which provide a mechanism for service of notices relating to land where the recipient has died.
Law of Property (Miscellaneous Provisions) Act 1994, s18
(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if –
(a) it is addressed to the ‘The Personal Representatives of’ the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and
(b) a copy of it, similarly addressed, is served on the Public Trustee.
The NtQ contained a conventional saving clause stating that GHA required possession:
… on 12 November 2018 (EXPIRY OF A FOUR WEEK PERIOD) or, if later, a day on which a complete period of your tenancy expires next after the end of four weeks from the service of this Notice.
Thus, the date of service of the NtQ could affect the date on which it expired; indeed, as there were seven days between the date of service on the PRs and the deemed date of service on the PT, the NtQ and the PT copy almost certainly expired on different dates if GHA had to rely on the saving clause.
The property remained occupied. GHA issued a claim for possession, arrears of rent and charges for use and occupation on 21 January 2019. One of the occupiers, Ms Begum, defended the claim. She claimed to be Mr Ali’s bigamous wife by a marriage in Pakistan. One strand of her defence was that the NtQ and the PT copy had expired on different dates and therefore were not valid to determine the common-law tenancy, pleaded in her defence at para 3 as follows:
Further, the [NtQ] fails the test of validity for lack of clarity because the [NtQ] that was served at the Premises (which was deemed served at the Premises on 17th October 2018) purports to determine the tenancy on 12th November 2018 or 18th November 2018 (being the day on which a complete period of the tenancy expired next after the end of four weeks from the date of service), whereas the Copy that was served on the [PT] (which was deemed served on 22nd October 2018) purports to determine the tenancy on 12th November 2018 or 25th November 2018 (being the day on which a complete period of the tenancy expired next after the end of four weeks from the date of service). The notice to quit did not validly determine the tenancy and the claim stands to be dismissed.
This defence relied on Pavey, in which HHJ Luba QC held that the ss18(1)(a) notice (the notice) and the ss19(1)(b) copy served on the PT (the copy) have to have the same expiry date and that both the recipients of the notice and of the copy have to be capable of satisfying themselves that both have the same expiry date: See Pavey at para 31:
Secondly, it is important that in both notices there is set out the same date for termination of the tenancy, or the same rubric for determining the date. It cannot have been envisaged by the Law Commission, or by Parliament in enacting the 1994 Act, that the date for determination of the tenancy could or should be understood to be a different date in the hands of each of the two recipients, i.e., the addressees, the personal representatives, and the person to whom a copy was to be sent, the Public Trustee.
Thus, HHJ Luba QC held that the date of expiry of the notice was affected by the date of expiry of the copy.
HHJ Luba QC’s interpretation of ss8(1) in Pavey had the following effect:
- The notice (ss18(1)(a)) and the copy (ss18(1)(b)) must have the same expiry date.
- The deceased’s PRs and anyone else interested in the tenancy and the PT must be able to calculate the expiry date of the notice.
- The PRs and anyone else interested in the tenancy have to be able to calculate the expiry date of the copy served on the PT.
- The PT must be satisfied that the notice was served on the PRs on a date which ensures that its expiry date is the same as that of the copy served on the PT.
The difficulty of complying with these requirements is obvious.
In Gateway, the deputy district judge followed HHJ Luba QC’s reasoning and concluded that the NtQ was invalid. GHA appealed.
GHA appealed on the ground that on a construction of s18 there was no requirement that the notice and the copy expire on the same date.
GHA relied on the reasons for the enactment of s18. It was to address a deficiency in the common law identified by the Law Commission (LC) in its 1989 report Property Law: Title on Death. The problem it was addressing is summarised in the LC report at para 2.27:
There are many situations in dealing with land in which it is necessary for notice to be given to the owner. Examples are: notices to quit land which is let, notices to exercise options to purchase or to extend leases and notices to exercise rights to review a rent. Where a notice is required to be served on the land-owner, a notice addressed to the deceased former owner will not be sufficiently served, since the deceased’s property will necessarily have vested in either his personal representatives or, at present, the President of the Family Division of the High Court. In the absence of special statutory or contractual provisions, the notice must be served in the names of the personal representatives (not simply ‘to the personal representatives’ of the deceased) or, in a case of intestacy, on the President of the Family Division. Problems arose in two circumstances. First, the person wishing to serve the notice may be unaware of the death. Secondly, even if he knows of the death, he may be unable to discover whether there is a will, whether it appoints executors and if so, who they are. In any event the risk always exists that the will is invalid or has been superseded by a later one. In the absence of a will, he must discover whether letters of administration have been granted. These problems will become critical if the notice has to be served within a strict time-limit. The party wishing to serve the notice may suffer considerable loss by reason of the other’s death. It seems to us unjust that the law should not offer a procedure to overcome the consequences of this capricious disruption of the parties’ contractual relations.
GHA argued that the purpose of s18 is to make it easier (not harder) for the person entitled to serve the relevant notice to serve that notice where the recipient has died. Section 18 applies only before a grant of representation has been taken out. Where a person dies intestate they have no PRs until letters of representation are obtained by someone; however, the method of service applies even where there are no PRs. Those who may have an interest in the deceased’s estate are protected under ss18(1)(a) because the notice must be:
- served at the deceased’s last known home or place of business, to which at least some of those interested in the estate of the deceased have access; and
- addressed to the PRs of the deceased.
In support of this position GHA relied on the LC report, para 2.37:
Clearly, enabling notices to be served before any grant of representation has been made may lay the deceased’s estate open to risk of prejudice. There might, for example, be only a limited time within which a counter-notice could be served, or a lack of response could bind the estate to revised contractual terms. For this reason, it is important that there should be a reasonable expectation that there will be an opportunity to take any necessary action on behalf of an estate. We consider that any notice served in accordance with our proposal would have a good prospect of coming to the attention of those concerned. That would then give them the opportunity of applying for a prompt, and if necessary, limited grant of representation.
In effect the principal protection of the estate of the deceased is the service of the notice on the premises addressed to the PRs of the deceased.
The copy that must be sent to the PT provides a public record of the service of the notice and further protection of the estate of the deceased, because the PT must keep a record of notices served on them and members of the public have a right of inspection of that record.
The Court of Appeal (comprising a panel containing two of the pre-eminent real property lawyers of their generation, Etherton MR and Lewison LJ), relying on the LC report, held that the primary purpose of s18 is to protect the interests of those who have the right to serve notices affecting land following the death of the person who would otherwise have been the recipient (para 45). The protection of the deceased’s estate and the role of the copy served on the PT is secondary; the record required to be kept by the PT is not comprehensive but performs the function that copies can be obtained by those interested in the deceased’s estate (para 46).
As to the date of service of the copy, the court accepted GHA’s submission that the copy must be served on the PT before the original has expired. The decision is summarised at para 53 as follows:
All those difficulties are avoided if section 18 is interpreted to require service of the copy under section 18(1)(b) prior to expiry of the operative notice, as indeed occurred in the present case. That is not oppressive for the landlord, and it is consistent with the objectives of the Commission and the legislation. It is both necessary and reasonable to interpret section 18 accordingly in order to make the legislation workable.
Conclusion for practitioners
To be able to rely on s18 as a method of service of a notice relating to land where the intended recipient of the notice has died, the server must:
- serve the original of the notice at the last known residential or business address of the deceased, addressed to their PRs; and
- serve the copy of the notice on the PT before the expiry date of the notice.
This raises the question of how the server proves the date of service on the PT if that issue is contested.
The PT is required to keep a register of notices served on them; however, the date on the register is not the date of service on the PT but rather the date that the notice is recorded on the register. Although the two dates may be the same, we are aware of cases when it has taken the PT some time to register a notice.
In usual times, ie, outside the lockdown, the server can rely on s7, Interpretation Act 1978 to establish service. This section provides a rebuttable presumption of service two working days after being placed in the post. It would, therefore, be for the recipient to rebut the presumption.
Currently, however, the PT is only processing notices received by email sent to OSPTControlUnit@ospt.gov.uk and is responding to notices served by post as follows:
The [PT] has received from you a Notice/and Application for Registration of Notice in respect of this property. This letter is not to be taken as an admission that the [PT] is under any liability in respect of that property or that she is the proper person to be served with the Notice or that the Notice is effective for the purpose for which it is intended.
Following the government's announcement in March 2020 all our staff worked remotely and we could not deal with anything received by post. Currently, due to social distancing, the number of staff who can be in the office at one time is limited and we therefore remain unable to deal with anything received by post.
Therefore please e-mail the NL(1) form and copy of the Notice to (OSPTControlUnit@ospt.gov.uk).
This raises the question of what the server should do where they are informed by the PT that they have received the copy in the post but have not processed it and that it should be sent by email.
We consider that the PT’s receipt of the copy in the post amounts to service for the purposes of ss18(1)(b) and the failure of the PT to process does not rebut the presumption of service. We take this view because the letter from the PT does not state that the notice has not been served, rather it confirms that it has, but states that the PT has not been able to deal with it and ss18(1)(b) requires only that the copy is served on the PT and not that the PT has registered the notice. It follows that the server can rely on the deemed date of service of the copy to establish service in compliance with s18. We do of course advise emailing the NL(1) form and the copy.