A recent case has stressed the importance of stating grounds relied on in notices, writes Sharon Garrity.
In the case of R (Masih) v Yousaf  EWCA Civ 234 an assured shorthold tenant fell into rent arrears. The landlord served a notice seeking possession relying on Ground 8 (stating that two months' rent was owing both at the date of the notice and at the date of the hearing). The tenant claimed that the notice was defective because it failed to mention that rent was "lawfully" due. The notice did state that the tenant owed at least two months' rent both at the date of service of the notice and at the date of the court hearing. The landlord set out later in the notice an explanation of why the ground was relied on - that the tenant owed £1,680.00 (three months' rent).
A possession order was granted. The tenant appealed, asserting that the notice was defective because of the failure to include the words "lawfully due". The tenant, amongst other things, submitted that "lawfully due" had additional meaning beyond the word "owed" saying that a notice stating merely that rent was owed would fail to alert a tenant that it might have, for example, a counterclaim based on costs of repairs necessary because of landlord default, which he may be able to set off against the rent; and that it was particularly important in this case because the tenant disputed that the rent was due on the grounds that the rent had been waived by the landlord and that she was entitled to set off a sum by way of counterclaim for repairs. In addition, that a strict approach to the requirements of section 8 Housing Act 1988 was essential in the case of mandatory grounds for possession unlike discretionary grounds.
The Court of Appeal dismissed the appeal. The wording in the notice that rent was owed was sufficient notice to enable a tenant to appreciate that it would be a defence to the claim to show that the rent was not lawfully due. Consequently, the recipient of a notice using the word "owe" ought to be aware that he or she must be able to show that the rent was not owed. The tenant's potential counterclaim for repairs was equally a claim that the rent was not owed. As for taking a more strict approach in the case of mandatory grounds, the Court noted that the Housing Act 1988 Act requirement for a notice to specify the ground relied upon, and particulars of it, applies to all the grounds in schedule 2 of the HA 1988 so it would be odd if the same statutory wording meant different things depending on whether the ground(s) relied on were mandatory or discretionary grounds.
The landlord was successful in this case, and it is settled law that a notice seeking possession does not need to contain the Housing Act 1988 wording verbatim for it to be a valid notice. However, landlords are reminded that the safest way to avoid a challenge to a notice seeking possession is to set out verbatim the words in schedule 2 to the Housing Act 1988.