As a landlord, you’ll be familiar with the requirement to ‘serve notice’ on your tenant. And, although it might seem simple, if you don’t do it right, it might be invalid, warns Catrin Mackie
A landlord often has to ‘serve notice’ on their tenant, whether to bring their tenancy to end, to allow them to do certain works, or to renew their lease. But, if you’re a landlord and you draft a notice yourself (as is particularly common with break notices and notices to quit), rather than getting legal assistance, you could be at risk of it being invalid. Here are some of the most common pitfalls to avoid.
Content of the notice
One common mistake landlords make is not making the content of the notice clear enough. The correct recipient (usually your tenant) must understand its purpose and effect. Two recent cases looked at this in detail.
First, in Trustees of Essex Hunt v Grimes, a landlord served a notice that said ‘your lease is due to expire… I am obliged under the lease to give you formal notice of termination’. Because of the wording, it wasn’t clear whether it was the notice of termination itself, or just an intention to serve the notice at a future date. Because of the ambiguity, the court had to consider whether or not a reasonable tenant would realise that this wasn’t just a threat, but was the notice itself. It ruled that they would: in colloquial terms, ‘I am obliged to ask you to leave’ is a polite way of actually telling them to do so.
In a second example, Dukeminster Ltd v West End Investments, the landlord’s solicitor accidently addressed the notice to ‘Dukeminster Limited’, rather than using the tenant’s full name, ‘Dukeminster (UG) Limited’. The tenant then argued that, because the notice was addressed to the wrong party, it wasn’t valid.
In this case, a judge had to apply a ‘reasonableness test’ – asking whether the notice was ‘plain enough’, despite the mistake, that a reasonable tenant would understand who it was meant for. Again, the court ruled that they would, and deemed the notice valid.
Both of these outcomes worked in the landlords’ favour. But, this might not be the case in every situation. Removing ambiguity avoids going to court, and means not taking the risk.
Address for service
As a landlord, you have to serve the notice at the right address – so that your tenant actually receives it.
As part of the lease, there’ll often be provisions specifying where a notice should be served. But, ambiguous wording can lead to confusion. For example, a lease might state that you should serve a notice at the address provided in the particulars or at another address, if notified in writing.
But what happens if your tenant then changes address, and notifies you? Do you have to serve the notice at the new address – or can you still send it to the old one?
The Grimes case (above) dealt with this, too. There, the tenant had moved, and told its landlord. But, the landlord served the notice at the old address, which was stated in the particulars. This notice wasn’t forwarded on, so the tenant never received it. It argued that, because it’d given the landlord its new address, the landlord couldn’t use the old one.
The court agreed. Once notified, a new address would substitute the old one. If not, the landlord could decide which address to send the notice to and the old one may well be unoccupied.
Again, ambiguity in the way the legal documents were drafted led to a court case – which could’ve been avoided.
What should you do?
If you make a mistake – whether with the content or the address for service – in a notice to your tenant, and they object, the court might correct your error. But, fundamental defects (like serving notice on the wrong party entirely) will usually invalidate the notice.
So, to avoid a lengthy, and costly, court battle, don’t be tempted to draft important notices yourself – seek legal advice first.