By Tim Jones
This article considers the recent Court of Appeal case of Gateway Housing Association Limited v the Personal Representatives of Mohammed Nuruj Ali (deceased) and Delara Begum  EWCA Civ 1339 (“Begum”).
The key issue in Begum was what a landlord was required to do in circumstances where the tenant had died intestate and the landlord wished to terminate the tenancy.
Death of a tenant – an overview
The legal framework is as follows:
- A tenancy is a proprietary right, not just a contractual right to occupy premises;1 therefore, the fact that a tenant dies does not mean the tenancy comes to an end. And if someone is still living in the property, even though they are not the tenant, the landlord still needs a possession order from the court in order to evict them.2 The tenancy must therefore be terminated. But how?
- Under Section 9 of the Administration of Estates Act 1925 (as amended), where a person dies intestate, his or her real and personal estate vest in the public trustee until the grant of administration.
- A landlord must terminate a contractual (as distinct from, for example, assured or secure) tenancy by serving a notice to quit in the form prescribed by Section 5 of the Protection from Eviction Act 1977. If the tenant dies and no-one succeeds to it, then the tenancy is obviously contractual because the nominal tenant is the Public Trustee, who is not occupying the property.
- When is a notice to quit (or any other document, for that matter) served? At common law, a document is served when it is received by the recipient.3 However, this presents practical problems as personal service can be expensive, time-consuming and difficult, and it is otherwise difficult to prove if (or when) the document in question was served. To resolve this, statutes that require certain documents to be served often permit or require service by another method, such as by post or by putting them through the letterbox at the recipient’s address. Additionally, tenancy agreements usually contain a clause permitting postal or letterbox service.
- Notices to quit must be in writing and must be served at least four weeks before they are to take effect. However, they typically contain a saving clause saying something like “the tenancy will be terminated on X date or on the first Monday after that date being at least four weeks after service of this notice”. The purpose of this saving clause is to obviate the need for a dispute about when the notice was served, so that if the four week period had been miscalculated then the notice would still take effect at least four weeks after it was actually served.4
- Section 7 of the Interpretation Act 1978 says that, “where an Act authorises or requires [emphasis added] any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, [emphasis added] the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved [emphasis added], to have been effected at the time at which the letter would be delivered in the ordinary course of post.” If sent by first-class post, this means the second working day after posting, following the Practice Direction (First and Second Class Mail) (“the Practice Direction”).5
- Section 18(1) of the Law of Property (Miscellaneous Provisions) Act 1994 (“the 1994 Act”) provides that 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 Personal Representatives of” the deceased (naming him) and left at or sent by post to his last place of business in the United Kingdom, andb. A copy of it [emphasis added, for reasons I will address later], similarly addressed, is served on the public trustee.The reason for Parliament permitting postal or letterbox service on the property is obvious – if the tenant has died, and the identity and whereabouts of the Personal Representatives have yet to be established, landlords need a mechanism that enables them to validly terminate the tenancy in those circumstances. As for the Public Trustee, the reason why he needs a copy is that he is required to maintain a register relating to notices served under the 1994 Act.6
- In summary:
a. When a tenant dies intestate, the way for the landlord to terminate the tenancy is to:
i. Serve a written notice to quit at the property addressed to the Personal Representatives of the deceased, either by leaving it at the property or by post; and
ii. Serve a copy of the Notice on the Public Trustee.
b. The Notice to quit will specify the date on which the tenancy will be terminated, which must be at least four weeks after the date the Notice to quit is deemed served.
c. If the Notice to quit is sent by first-class post, it will be deemed served on the second working day after posting, and the four-week period should be calculated from that date.
d. However, notices to quit frequently contain a savings clause, meaning that, if the termination date has been incorrectly calculated for some reason, all is not lost and the notice to quit will just take effect four weeks after it was deemed served.
The fact that the Landlord has to serve a notice to quit on the Personal Representatives of the deceased tenant AND serve a copy on the Public Trustee can present a problem. What if the date the notice to quit was deemed served on the Personal Representatives is different to the date it was deemed served on the Public Trustee? In that situation, how do you know what date the tenancy was terminated on? Treating the starting point as the dates of deemed service for each notice will give you two different answers.
In the County Court decision of Pavey v London Borough of Hackney (unreported) 21 November 2017, His Honour Judge Luba QC found that the effect of a discrepancy between (1) the termination date when calculated from when it was deemed served on the Personal Representatives and (2) the termination date calculated from when the copy was deemed served on the public trustee was that both notices were invalid for want of clarity. The tenancy had not, therefore, been terminated, and accordingly, the court could not make a possession order.
On 4 May 1998, Gateway Housing Association Limited (“Gateway”), a Registered Provider of Social Housing, granted a joint assured tenancy of a property to Mr. Mohammad Nuruj Ali and his wife, Mrs. Moizun Nessa. Mrs. Nessa died on 15 March 2014, whereupon Mr. Ali became the sole tenant of the property by survivorship. Mr. Ali died on 10 August 2018. However, the property remained occupied by Ms. Begum, who claimed to have married Mr. Ali in Bangladesh in March 1990.
Clause 1(6) of the tenancy agreement stated the following:
“Any legal notice, or any other communication arising from this Agreement, shall be validly served on the Tenant if posted or delivered to the Premises.”
More on this below. On 15 October 2018, Gateway served a notice to quit by first class post to the property, addressed to Mr. Ali’s personal representatives. It said as follows:
“[Gateway], as Landlord, gives you NOTICE TO QUIT and requires you to deliver up possession to them of [the Property] 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.”
Note the saving clause emphasised in bold.
The deemed date of service of the notice to quit served on the property was 17 October 2018, meaning that it actually expired on 18 November 2018. However, a copy was served on the Public Trustee on 18 October 2018. Gateway said that the deemed date of service of the notice on the Public Trustee, based on Section 7 of the Interpretation Act, was 22 October 2018; however, it transpired that the Public Trustee had received the notice to quit on 30 October 2018. It was therefore common ground between the parties that the Interpretation Act presumption had been rebutted and that the notice to quit served on the public trustee was served on 30 October 2018 and expired on 2 December 2018. Thus, there was a discrepancy over the termination date, and the question arose (again) as to what the upshot of this was.
At first instance, Deputy District Judge Smith applied Pavey and found that the notices to quit were invalid for want of clarity.
The Court of Appeal’s decision
The Court of Appeal considered Pavey but found that it was wrongly decided. The copy of the notice to quit required to be served on the Public Trustee was precisely that – a copy – and it was only the original notice to quit served on the tenant that was of any import when calculating the termination date, meaning that there was no discrepancy:
“32. Gateway criticises the analysis and conclusion in Pavey on practical and legal grounds. The problems, it submits, are the result of Judge’s Luba’s interpretation of section 18 of the 1994 Act requiring that (1) both the section 18(1)(a) notice and the section 18(1)(b) copy of the notice are of contractual effect; (2) the recipient of both the notice and the copy must be able to work out that both expire on the same date; and (3) the recipient of both the notice and the copy must be able to be satisfied that they both expired on the same date.
34. Mr Justin Bates, counsel for Ms Begum, did not reject Mr Grundy’s summary of Judge Luba’s judgment in Pavey but he rejected Gateway’s description of the practical consequences as exaggerated and as capable of easy solution… It is submitted in [his] skeleton argument that the solution, in any event, would be for the landlord to post the notice and the copy by first class post at the same time and, absent any proven delay in the postal system, the two notices will be deemed, by virtue of section 7 of the Interpretation Act 1978, to have arrived at the same time. In the course of oral submissions, Mr Bates accepted that this carried an element of risk for the landlord as the presumption may be rebutted, as indeed it was in the present case on the facts found by the Deputy District Judge (who found that the copy was posted to the Public Trustee on 18 October 2018 but was only received on 30 October 2018). Mr Bates said it was all a question of “risk management” and the degree of risk a landlord was prepared to accept. He submitted that, if a landlord was not prepared to accept any risk of a discrepancy that the presumption in section 7 might be rebutted, then the landlord should arrange for personal service on the Public Trustee.
39. The starting point for Judge Luba’s reasoning in Pavey is that, in accordance section 18, the notice to quit is only sufficiently served if has been delivered in accordance with section 18(1)(a) and a copy has been served on the Public Trustee in accordance with section 18(1)(b). It is implicit in his judgment that both the service of the notice to quit and the service of the copy are of equal significance and consequence. As he said (at ), there can only be the running of time from proper service rather than partial service of the notice to quit. It was from that starting point that he asserted (in ) that 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, as it cannot have been envisaged by the Law Commission or by Parliament 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, the personal representatives and the Public Trustee. Accordingly, for Judge Luba, the notice to quit and the copy served on the Public Trustee is each a self-standing document, and it must be clear from each of them when the tenancy would be determined, and that must be the same date of determination notwithstanding that the service of the notice and the service of the copy might not be the same date.
40. With all respect to Judge Luba’s careful analysis, we consider that he has mischaracterised the significance of the copy served on the Public Trustee, and its inter-relationship with the notice to quit. It is fundamental that what is served on the Public Trustee is only a copy of the notice to quit[emphasis added]. It is not an independent, self-standing notice. Mr Bates placed weight on the fact that the Public Trustee is the notional tenant. That cannot, however, be a compelling consideration. In the first place, although the Public Trustee might be the notional tenant in the present case if (as asserted by counsel, but not pleaded) Mr. Ali died intestate, the Public Trustee will not be the notional tenant where the tenant died testate and there are executors capable of taking a grant of probate. In the second place, section 18(1)(b) requires the copy to be addressed, not to the Public Trustee, but to the personal representatives. Accordingly, I do not agree with the submission of Mr Bates that what is to be served under section 18(1)(b) of the 1994 Act is not a copy of the notice to quit but, in his words, a notice “of the same form and of the same effect” as the notice to quit under section 18(1)(a). The operative document is the notice to quit and its terms govern the date of determination of the tenancy. The date on which the service of that document is deemed to be served, pursuant to section 18(1), is a different issue.”
However, the Court of Appeal found, at , that the copy of the notice to quit required to be served on the public trustee must still be served prior to the expiry of the operative notice to quit served on the personal representatives.
The decision in Begum will no doubt be welcomed by landlords, who will now have greater certainty that the deemed date of service of the notice to quit served upon the Personal Representatives is the operative date of service for calculating the termination date.
One interesting point is that the court and the parties took it as a given that the deemed service provisions under Section 7 of the Interpretation Act applied to the copy of the notice to quit served on the Public Trustee. However, it may be noted that Section 7 only applies when an Act authorises or requires postal or letterbox service and that, while Section 18(1)(a) of the 1994 Act expressly authorises these methods, Section 18(1)(b) does not; it simply states that the Public Trustee must be served with a copy, without qualification. This arguably means that Section 7 of the Interpretation Act does not apply and there is, consequently, no such thing as “deemed” service on the Public Trustee. This point would have made little or no difference in Begum as it was common ground that the presumption was rebutted in any event, but in theory it could pose difficulties if, for example, the landlord served the Public Trustee by post with a copy of the notice to quit before the notice to quit expired but the Public Trustee only received the copy notice after it expired.
If the reason why the deemed service provisions were assumed to apply was that the Public Trustee was the nominal tenant and thus bound by clause 1(6) which authorised postal service, then the issue still does not end there, as further problems arise:
- In order to be effective, deemed service provisions need to do two things: a. Authorise a particular method of service; and
b. Specify the date on which service is deemed to take place if that method is used – otherwise, one is still left with having to establish when the document in question was received.
- The tenancy agreement in Begum was not an Act of Parliament; therefore, it could not be said that an Act had authorised postal service in this case. Accordingly, the Interpretation Act did not apply, and consequently, nor did the Practice Direction method of calculating when service was deemed to have taken place.
- All clause 1(6) of the tenancy agreement did was purport to permit service by post. It did not specify when service by post was deemed to take place; therefore, it was arguably ineffective.
- If the period for deemed service under the Practice Direction still applied to clause 1(6) for some reason, then the rebuttable presumption did not. For example: a. In Akram v Adam,7 the Court of Appeal noted that, while the deemed service provisions under the old County Court Rules expressly created a rebuttable presumption as to service (like that in the Interpretation Act), those under the Civil Procedure Rules were unqualified; therefore, a “legal fiction” was created whereby it was no longer open to a party to argue that the document in question (in that case, a claim form) was, in fact, received – and, therefore, served – on a different date, or not at all. b. Similarly, in Commercial Union Life Assurance Co Limited and another v Moustafa8, the Queen’s Bench Division considered the relationship between Section 17 of the Landlord and Tenant (Covenants) Act 1995 (“the 1995 Act”) with Section 7 of the Interpretation Act. Notices under Section 17 of the 1995 Act were authorised, by Section 23 of the Landlord and Tenant Act 1927, to be served by post. Because this authorisation was unqualified, the lack of qualification implied a “contrary intention” that simply effecting service by post was good service and the rebuttable presumption did not apply.
In practice, technical arguments about deemed service of notices do not always come up, perhaps because District Judges deal with busy possession lists. When a tenant does deny receipt, the submission that a lack of receipt does not equate to a lack of service is often sufficient to get landlords over the line, but this is predicated on certain assumptions about deemed service which may not, in fact, apply in all cases, and so this argument may not always work. Not all advocates are aware of the need to establish that the method of service the landlord relied upon was permitted, much less how that permission operates. As I often say, “just because you usually get away with it, doesn’t mean it’s technically right”.
But, for now, landlords can breathe a sigh of relief.
All views are my own.
1 – Street v Mountford  UKHL 4.
2 -Protection from Eviction Act 1977, Section 3.
3 – Knight v Goulandris  EWCA Civ 237.4 – Fletcher v Brent LBC  EWCA Civ 960.
5 –  1 All ER 889.
6 – The Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995.
7 –  EWCA Civ 1601.
8 –  2 EGLR 44.