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2022 continues the gradual return to pre-pandemic procedures for residential evictions.
Landlords are once again crossing T’s and dotting I’s to try and serve the perfect Section 8 or Section 21 notices. This is because there is a very real danger of an incorrect notice leading to a landlord’s claim being thrown out of Court (with the costs payable to the tenant in most of these cases).
However, landlords can now breathe a small sigh of relief thanks to the Court of Appeal decision in Fearn and others v Northwood (Solihull) Ltd , which suggests tenants will no longer be able to defend possession claims based on excessively technical arguments.
Commercial landlord, Northwood (Solihull) Ltd, served a section 8 notice to recover arrears from its tenants, Mr Fearn and Ms Cooke. The notice was signed by Northwood’s property manager, who was authorised to do so. However, the property manager struck through the words ‘landlord’s agent’ and, when serving the notice, specified that it was given by the landlord.
The tenants defended the resulting possession proceedings on the basis that the notice was invalidly executed because it did not comply with the requirements of the Companies Act 2006. Northwood appealed to the High Court, then the tenants cross appealed. It was eventually held that the notice was, in fact, valid.
Lord Justice Lewison held that a Section 8 notice did not need to be ‘executed’ in accordance with the Companies Act 2006 to be validly given by a corporate landlord. He held that ‘the question is one of agency and authority’, meaning that where, a company gives authority to a signatory, the resulting signature counts as if the document were signed by the company itself. Since this Section 8 notice was signed by someone authorised by the landlord to sign it, their signature counted as that of the landlord itself.
The Court of Appeal has laid down a clear marker that notices will not be invalidated by purely formal defects. This means the Courts will now have to adopt a practical approach to possession claims so that, unless tenants are unfairly prejudiced, notices which achieve the overall intended effect should be upheld.
The decision will be a welcome one for all landlords. It steers possession claims away from the minefield of excessively technical defences. It is of course preferable to ensure that your possession notice and the success of any claim do not hinge on decisions from the Court of Appeal. As daunting a task as it may be, the best way to ensure a positive result at Court is still to get the initial notice absolutely spot on. We would be more than happy to assist you preparing possession notices and providing advice on the Court procedure thereafter. If you require assistance with this or would like to make an enquiry with one of our expert solicitors, then please do not hesitate to contact our Real Estate Disputes team.
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