Section 8 notice valid despite typographical error

The Court of Appeal has confirmed the validity of a section 8 notice which contained an inaccurate date for commencement of possession proceedings.

Background

Section 8 of the Housing Act 1988 (the Act) concerns proceedings by landlords for possession of properties let on assured tenancies on one of the grounds specified in Schedule 2 to the Act. Those grounds include ground 8 which relates to the non-payment of rent. Section 8 provides that the landlord must serve a notice in the prescribed form on the tenant stating:

• the relevant statutory ground of possession
• that the landlord intends to begin proceedings for possession on that ground; and
• that those proceedings will not begin earlier than a date specified in the notice, which date must be at least two weeks but not more than twelve months from the date of service of the notice

Facts

In the case of Pease v Carter the landlord granted the tenants an assured shorthold tenancy (AST) of a house on 1 August 2007 for a term of six months which, after expiry, continued as a statutory periodic tenancy. The landlord alleged that the tenants had failed to pay the rent. On 7 November 2018 he served notices on the tenants under section 8 of the Act as a precursor to possession proceedings. The notices were in the correct standard form but the date they stated for commencement of court proceedings was 26 November 2017 rather than 26 November 2018.

In the subsequent proceedings the judge held that the notices were invalid because of this error. The landlord appealed.

Decision

Having reviewed the previous caselaw in detail, the Court of Appeal concluded that:

• the test laid down by the House of Lords in Mannai Investment Co Ltd v Eagle Star Assurance Co Ltd [1997] AC 747 (which applies to break notices in commercial leases) also applied to statutory notices. This test is whether, despite an error, a reasonable recipient, with knowledge of the background, would understand the purpose of the notice.
• If a reasonable recipient would appreciate that the notice contained an error, e.g. as to date, and would appreciate the intended meaning of the notice, then that is how the notice should be interpreted.
• It is still necessary to consider whether, so interpreted, the notice complied with the relevant statutory requirements, including the purpose of those requirements
• Even if a notice, properly interpreted, did not precisely comply with the statutory requirements, it may still be "substantially to the same effect" as a prescribed form if it nevertheless fulfils the statutory purpose, even if the error relates to information contained in or missing from the form.

The Court of Appeal found that the section 8 notices were valid and allowed the appeal. Applying the tests outlined above:

• The date for commencement of proceedings was an obvious typographical error;
• Reading the explanatory notes in the notice together with the cover letters containing the correct date, it would have been obvious to the recipient what the intended correct date was;
• The notices did comply with the statutory requirements. These required the landlord to give the tenant notice that the proceedings would begin on a date at least two weeks after the date of service of the notice;
• The notices also complied with the purpose of these requirements, being to give the tenant time to take steps to deal with the threatened proceedings e.g. by trying to pay the arrears, taking advice, obtaining representation and/or seeking alternative accommodation.

Comment

This case has provided much needed clarity on the question of whether the Mannai test applies to statutory notices and, in so doing, will avoid further expensive and time-consuming litigation on the point.

Attention to detail in the service of notices remains extremely important, as the test will only go so far in saving defects. Landlords and agents serving similar notices should therefore be careful to double check all details before service.

Pease v Carter [2020] EWCA Civ 175