Death to confusion, clarity resurrected

The Court of Appeal has provied clarity on the correct process to follow in order to end the tenancy of a deceased tenant. Victoria Osler analyses the ruling.

A knotty problem has long bedevilled landlords wishing to terminate the tenancy of a deceased tenant: on whom should the notice be served, how and when? This is not an academic problem: until the tenancy is terminated possession cannot be obtained, occupants of the premises may remain in situ and the Estate of the deceased remains liable for the rent.

Conflicting lower court decisions had sown confusion as to the correct process to follow in order to end the tenancy of the deceased tenant. Thankfully, in its recently handed down unanimous judgment in Gateway Housing Association Limited v (1) The Personal Representatives of Mr Ali (Deceased) (2) Mrs Begum [2020] EWCA Civ 1339, the Court of Appeal has replaced that confusion with clarity.

First, the problem. The genesis lies in the resilient nature of the tenancy itself. A tenancy, whether assured or secure, does not easily perish. While on the death of the tenant, statutory security is extinguished because (obviously) the tenant is no longer occupying the property as their only or principal home (s.81, Housing Act 1985, s.1, Housing Act 1988), the tenancy itself does not shake off its mortal coil; it continues, albeit with contractual status only.

As for the destination of that tenancy post death, if the deceased tenant has left a will, the tenancy vests in his executors. If the tenant has died intestate, the tenancy vests in the Public Trustee (Administration of Estates Act 1925). That vesting does not confer on the Public Trustee any beneficial interest in, or impose on him any duty, obligation or liability in respect of the property: 1994 Act, s.14(1). The Public Trustees role is merely limited to the receipt and recording of information as is made explicit on the form (NL1) which must accompany the notice served on the Public Trustee.

To terminate the tenancy the landlord needs to serve a notice. But on whom is it served when the usual recipient, the tenant, is dead. Is it to be served on the executors or on the Public Trustee?

This was an issue with which the Law Commission grappled in the 1989 Law Commission Report ‘Property Law: Title on Death’ (“the LC Report”). The Report centred on the plight of the server of the notice when the usual recipient is deceased:

“Rights and liabilities in relation to land are frequently regulated or triggered by the service of notices. Difficulties arise when they cannot be properly served for one of two reasons: first, the person serving the notice does not know the intended recipient has died; or, secondly, although he knows of the death, he does not know, and cannot find out, whether there are any personal representatives or who they are. It seems unjust that these circumstances should preclude the service of any notice. We have however, devised a procedure that will not unreasonably prejudice the deceased’s estate” [para.1.9].

That “procedure” was implemented by the coming into force of s.18, Law of Property Miscellaneous Provisions) Act 1994 (“LP(MP)A 94, which provides:

“18 ‘Notices affecting land: service on personal representatives before filing of grant’ 

(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 purpose behind the provision, to ease the plight of the server, was somewhat undermined by the decision in LB Hackney v Pavey (2017) (unreported) which while only a decision of the County Court was widely publicised and relied on (understandably) by occupants who remained in the deceased tenant’s former home, and who found themselves the subject of a possession claim. In Pavey, there had been a considerable delay between service of the notice on the Personal Representatives and service of the copy on the Public Trustee, so that by the date of the service on the latter, the notice had expired. The Court held that both the original notice addressed to the Personal Representatives of the deceased and the copy served on the Public Trustee had operational affect. The Court reasoned that because the recipient of a notice (whether the Personal Representatives or the Public Trustee) had to be capable of calculating with certainty the expiry date of the notice, the date of expiry of the original served on the Personal Representatives and the copy served on the Public Trustee had to be the same date. Moreover, the Court held that the Personal Representatives had to be certain that the copy served on the Public Trustee had expired on the same date as the original notice served on them.

So much for a simple procedure.

Matters were complicated further when Pavey was distinguished in the case of London Borough of Sutton v Dolan (unreported). In that case, the copy of the notice had been served on the Public Trustee on a date later than service of the original notice, but still prior to the date of its expiry. The court found that to be valid service. The implications of the Dolan decision were uncertain because if the Court in Pavey was correct and both the original and copy notices had operational affect, did the analysis in Dolan not permit of short service on the Public Trustee?

The mess into which the issue had slipped was all too clearly obvious in the circumstances of Gateway v Begum. The tenant had died leaving Mrs Begum, who claimed to be his bigamous wife, in occupation. The original notice had been served on the PRs on 17.10.18, which stated that it expired on 12.11.2018 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”. That gave an expiry date of 18.11.2018, i.e. the Sunday four weeks after service.  

The copy was sent to the Public Trustee on 18.10.18 in compliance with section 18(1)(b). It was deemed served on 22.10.18, giving an expiry date of 25.11.2018.

The Public Trustee subsequently stated that the notice had not been received until 30.10.20, giving an expiry date of 1.12.2018.

Following Pavey, as he was bound to do, the DDJ dismissed the claim on the basis that the two operative notices had different expiry dates. He gave Gateway HA permission to appeal and leap-frogged the appeal to the Court of Appeal.

On appeal, Gateway argued that on a correct interpretation of s.18(1) – and giving effect to the purpose of enacting that section as made clear in the LC Report i.e. simplicity for the server - good service was affected provided that the copy of the notice was served on the Public Trustee before the expiry of the original notice served on the Personal Representatives.

Mrs Begum argued, however, that Pavey was absolutely correct, that both the original and copy notices were of operational affect and must be served to expire on the same date. In purported answer to the logistical and obvious difficulties that throws up for the server – the very difficulties the LC had designed the provisions in s.18 to avoid – Mrs Begum argued that the server could employ personal servers to deliver the notices to the Personal Representatives and Public Trustee on the same day. That the Public Trustee has only one office in London, thereby presenting some practical difficulties for landlords from Truro to Tyneside in ensuring that simultaneous service, was not lost on the Court of Appeal which considered this suggestion “impractical and unrealistic” [para.35].

The Court of Appeal looked back to the objectives of the LC Report: “the primary focus of the Law Commission was on the difficulties of owners of land being able to serve notices following the death of the person who would otherwise have been the recipient [para.45].” With that focus in mind the Court of Appeal accepted Gateway’s argument that “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.” [para.53].

After a period of confusion, Gateway is to be embraced for its clarity. Those entitled to serve notices can be confident that they have complied with the service provisions required by s.18 if the copy of the notice sent to the Public Trustee is served on that office before the expiry of the original served on the Personal Representatives of the deceased tenant.

But there remains a health warning for the server. If the copy is served via post and the server wishes to rely on the deemed service of two working days after posting, the presumed date of service can be rebutted by evidence that it was received later. An occupier defending a possession claim will almost inevitably put the Landlord to proof that the Public Trustee has been served and prior to the expiry of the original notice.

The implications of this judgment are far reaching and not limited to services of notice to quit in the residential context; section 18 governs all notices affecting land served where the person affected has died. For that reason, the clarity afforded by the Court of Appeal is to be welcomed.

Victoria Osler is a barrister at Five Paper, Temple. She was Junior Counsel for Gateway Housing Association.