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Reported Case

Lakhany v Prempeh, [2020] EWCA Civ 1422 (3 November 2020)

Date: 03/11/2020
Duncan Lewis, Reported Case Solicitors, Lakhany v Prempeh, [2020] EWCA Civ 1422

This was a Court of Appeal case concerning whether a notice seeking possession of residential property due to rent arrears had to contain the name and address of the landlord.

The Appellant and Ms Appiah-Baker moved in to the London residence as the assured shorthold tenants of the Respondent pursuant to an initial agreement dated 16 December 2016.

The Appellant asserts that a further agreement was entered into, dated 17 December 2017 in her sole name, however this is disputed by the Respondent.

The Respondent served a notice seeking possession on the Appellant reliant on grounds 8, 10 and 11 to schedule 2 of the Housing Act 1988 on or around 23 April 2019.

The Respondent subsequently issued a claim for possession on 13 May 2019 reliant on that notice.

The first possession hearing took place on 25 July 2019. The Respondent was represented by counsel and the Appellant was represented by housing solicitor Adrian Smith as Duty Solicitor.

The following defences were raised on behalf of the Appellant:


  • The Respondent had no standing to bring the claim as he was not the landlord named on the second tenancy agreement;

  • The notice seeking possession was defective as it was a demand for rent and did not meet the requirement to record the landlord’s name and address in accordance with s47 Landlord and Tenant Act 1987 as per CY Property Management Limited v Babalola, County Court at Central London, 25 Janaury and 24 April 2019, in which Duncan Lewis were also instructed.

  • The Respondent had failed to protect the deposit and or provide the prescribed information within the required timeframe giving rise to a counterclaim, the value of which should be set off against the arrears.


DDJ Goodman dismissed the defences, found that the second tenancy agreement was forgery, and determined that the counterclaim should be brought as a separate claim. A money judgment was also made in respect of the rent arrears.

The possession order was appealed on 9 August 2019. The grounds of appeal raised matters including procedural unfairness in determining factual issues without a trial, the validity of the notice seeking possession and the correct approach to potential counterclaims which may be set off against rent arrears.

The appeal was allowed on the basis that the judge had fell into error in continuing without a trial and in so doing exceeded the “generous ambit of a robust case management decision”. It was also allowed on the basis that a counterclaim which could set off the arrears could affect the possession order made and also goes “to the very heart of the money judgment and the proper course….would be to make a possession order if that was possible and to adjourn off the money claim for a proper quantification of the money claim….”

The appeal was dismissed in relation to the validity of the s8 notice, the judge determining that there were good reasons to depart from the reasoning of HHJ Saunders in CY Properties and find that a s8 notice cannot be a demand for rent and therefore need not comply with s47 Landlord and Tenant Act 1987. He did however leave open the question of whether the s8 notice was valid and whether the landlord’s own name and address should be provided in accordance with The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 SI No. 620. This contains the prescribed form of the s8 notice which must be used in accordance with s8 (3) Housing Act 1988 when relying on ground 8.

The matter was remitted to Barnet County Court for a trial. However, the finding of the circuit judge in relation to the notice seeking possession was appealed to the Court of Appeal on the following grounds:

  1. A notice seeking possession is a demand for rent and therefore must comply with s47 Landlord and Tenant Act 1987 by having the landlord’s own name and address rather than that of an agent.

  2. The landlord’s own name and address should be provided in accordance with The Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 SI No. 620. This contains the prescribed form of the s8 notice which must be used in accordance with s8 (3) Housing Act 1988 when relying on ground 8.


The first ground was dismissed on the basis that a notice seeking possession is not a demand for rent and therefore the requirement of s47 LTA 1987 does not bite. This was on the basis inter alia that 1) there is no express demand contained with the form of a s8 notice; and 2) even if there was and the demand was satisfied, there was no guarantee that this would prevent a successful claim for possession. The reasoning for this was that a landlord could still seek to claim possession reliant on the same notice either on the basis of subsequent arrears of rent coming due or on the basis of persistent default under ground 11.

The second ground was dismissed broadly on the basis that the prescribed form of s8 notice had no dotted line next to the space given to provide the landlord’s name and address in contrast to the other parts of the form that the landlord was expected to complete and that where it was stated “name and address of landlord/licensor” was followed by a full stop rather than a colon and therefore should be considered to be a heading rather than a part of the form to be filled in.

It was also rather surprisingly found that the requirement for a landlord to enter their own name and address could be a “trap for the unwary.” This was on the curious basis that many landlords may act in person and use agents that are not professional agents who could mistakenly enter their own name leading to a claim for possession being defeated in circumstances in which the Defendant has suffered no real prejudice. Practitioners in the area will be aware that the vast majority of agents are either professional letting agents or solicitors, so the idea that the use of lay agents could lead to widespread confusion appears mistaken.

The claim for possession will now be listed for trial in the County Court. An appeal to the Supreme Court in relation to the validity of the notice seeing possession is under consideration.


Representation

Housing solicitor Adrian Smith represents the Appellant. Toby Vanhegan of 4-5 Gray’s Inn Square and Robert Brown of Selborne Chambers are instructed Counsel.

 

Find full details of this case on Bailii’s website here.
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