Nick Grundy QC and Victoria Osler, acting for the Appellant, instructed by Jatinder Bhamber of Capsticks, succeed in the Court of Appeal on the application of the Law of Property (Miscellaneous Provisions) Act 1994, S. 18: Gateway HA v (1) PR’s of Ali (deceased) and (2) Begum  EWCA Civ 1339.
Decision: Service in accordance with S. 18 is achieved provided that the copy of the notice sent to the Public Trustee is served before the expiry of the original notice.
The Court of Appeal has resolved the issues relating to the service of Notices to Quit where the landlord seeks to rely on the Law of property (Miscellaneous Provisions) Act 1994, S. 18 (“S. 18”) and serves a notice on the Personal Representatives (“PRs”) of the deceased tenant at the property and sends a copy of that notice to the Public Trustee (“PT”).
Ending a periodic tenancy after the tenant has died creates difficulties and until the tenancy is ended the landlord cannot recover possession of the property. Furthermore, until the tenancy is ended the deceased tenant’s estate is liable for the rent, to the extent of the deceased’s assets: See Youngmin v Heath  1 WLR 135. S. 18 was introduced pursuant to Law Commission recommendations to resolve the problem of serving notices on deceased tenants; ss. 18(1) provides as follows:
(1) 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 known place of residence or business in the United Kingdom, and
(b) a copy of it, similarly addressed, is served on the Public Trustee.
The intention behind this section; i.e. of making it easier for those entitled to serve notices where the intended recipient has died was thwarted in relation to notices to quit by the decision of HHJ Luba QC in LB Hackney v Pavey (2017) (unreported), but widely available to the legal representatives of occupants of premises the tenant of which had died.
In Pavey HHJ Luba QC held that both the original notice addressed to the PR’s of the deceased and the copy served on the Public Trustee (“PT”) had operational affect. HHJ Luba QC held that because the recipient of a notice had to be capable of calculating with certainty the expiry date of that notice, the date of expiry of both the original and the copy had to be the same date; this can of course cause a problem where the saving clause is used and the notices are not served on the same date. HHJ Luba went even further and held that the personal representatives had to be certain that the copy served on the PT had expired on the same date as the original notice served on them. Thus, a provision that was intended to make the requirements for service of notices less difficult in the event of the death of the recipient required service on the same day and affidavits to conform that fact. In the instant case before the Court of Appeal Ms Begum’s representatives suggested that landlords could ‘manage the risk’ by instructing process servers to serve the copy of the notice on the PT. HHJ Luba QC is a renowned residential landlord and tenant specialist and the presiding judge in London. His decisions bind the District Judges.
Many social housing tenants have weekly periodic tenancies giving rise to the problem of terminating the tenancy on the tenant’s death.
The problem created by the decision in Pavey required resolution. Gateway Housing Association were willing to take this case to the Court of Appeal.
In this case the original NtQ was served on Mr Ali’s PRs on 17.10.2018. The copy was sent to the PT on 18.10.2018 with a deemed date of service of 22.10.2018. In fact the PT subsequently stated that it received the copy on 30.10.2020.
The NtQ stated that it expired on 12.11.2018, or by reference to a saving clause: i.e. 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. On the basis of a service date on the PRs on 17.10.2020 the original NtQ expired on Sunday 18.11.2018: i.e. the Sunday four weeks after service. On the basis of a deemed date of service of the PT of 22.10.2018 the copy expired on 25.11.2018 and on the basis of an actual date of service of 30.10.2018 it expired on 1.12.2018.
Gateway issued proceedings. Mr Ali’s estate did not defend the claim; however, Ms Begum, who claims to be his wife by a bigamous marriage did defend them
Following Pavey, as he was bound to do, the DDJ dismissed the claim, but he gave Gateway HA permission to appeal and leap-frogged the appeal to the Court of Appeal
Gateway’s Case on the Appeal
Nick and Victoria argued that on a correct interpretation of S. 18(1) the original notice served on the Personal Representatives was of operation affect and that the copy served on the Public Trustee was only for the maintenance of a public record. Nick and Victoria argued alternatively: as Ground 2 that the copy served on the PT could be served at any time, even after the original had expired, and as Ground 3, that good service was affected provided that the copy of the notice was served on the PT before the expiry of original served on the deceased person’s PR’s.
The Court of Appeal’s Decision
The decision of the Court of Appeal is summarised in paragraphs 45 and 53 as follows:
45. Looking at the Law Commission’s report more generally, we agree with the submission of Mr Grundy that the primary focus of the Law Commission was on the difficulties of owners of land being able to serve notices following the death of the person who would otherwise have been the recipient.
53. All those difficulties are avoided if section 18 is interpreted to require service of the copy under section 18(1)(b) prior to expiry of the operative notice, as indeed occurred in the present case. That is not oppressive for the landlord, and it is consistent with the objectives of the Commission and the legislation.
The practical impact of the decision
Those entitled to serve notices can now be confident that they have complied with the service provisions in the 1994 Act, S. 18 if the copy of the notice sent to the PT is served on the PT before the expiry of the original served on the PRs of the deceased person.
Be aware that if you use postal service and want to rely on the deemed date of service of two working days after posting, the presumed date of service can be rebutted by evidence that it was received later.
To view the full judgment please click here – Gateway Housing -v- Ali (deceased) anr (Final)