Ms Cynthia Prempeh v Mrs Ferakh Lakhany
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Henderson,Lord Justice David Richards |
| Judgment Date | 30 October 2020 |
| Neutral Citation | [2020] EWCA Civ 1422 |
| Date | 30 October 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2020/0013 |
[2020] EWCA Civ 1422
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
His Honour Judge Lethem
F00BT511
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lord Justice Henderson
and
Lord Justice Nugee
Case No: B5/2020/0013
Toby Vanhegan and Robert Brown (instructed by Duncan Lewis Solicitors) for the Appellant
Simon Jones (instructed by Philip Ross Solicitors) for the Respondent
Hearing date: 21 October 2020
Approved Judgment
Introduction
This appeal concerns the validity of a landlord's notice served under the Housing Act 1988 ( “the 1988 Act”) in respect of an assured shorthold tenancy. Where a landlord wishes to take proceedings for possession, s. 8 of the 1988 Act requires him or her to serve a notice in a prescribed form (a “s. 8 notice”) before doing so. The particular question raised by the appeal is whether the s. 8 notice has to contain the landlord's own name and address, as opposed to the name and address of the landlord's agent, either in every case, or at any rate if the landlord wishes to rely on arrears of rent as a ground for possession.
The appeal is brought by the tenant, Ms Cynthia Prempeh, against the Order of HHJ Lethem sitting in the County Court at Central London dated 16 December 2019. By his Order HHJ Lethem allowed an appeal on a number of grounds against the Order of Deputy District Judge Goodman dated 25 July 2019 in which she had ordered possession in favour of Mrs Ferakh Lakhany, the present respondent. HHJ Lethem did not however accept the argument for Ms Prempeh that the landlord's s. 8 notice in this case was invalid and of no effect because of the failure to give Mrs Lakhany's name and address. The submission advanced on appeal to this Court by Mr Toby Vanhegan, who appeared with Mr Robert Brown for Ms Prempeh, is that he should have accepted that argument. Permission to appeal was granted by Arnold LJ on 4 May 2020.
For the reasons that follow, I would dismiss the appeal and hold that the s. 8 notice served on behalf of Mrs Lakhany was valid and effective, or to be more precise, that it is not invalidated by the failure to give her own name and address: as explained below, there is in fact an unresolved question whether Mrs Lakhany is or is not Ms Prempeh's landlord. As Mr Vanhegan pointed out, if Mrs Lakhany is not her landlord, the s. 8 notice would no doubt be invalid, but that is likely to be of no significance as in that case the entire claim will fail in any event as she will have no standing to seek either possession or any other relief.
Facts
By a tenancy agreement dated 16 December 2016 Mrs Lakhany let a flat at Flat 16, Amelia House in London NW9 ( “the flat”) to two tenants, Ms Rita Appiah-Baker and Ms Prempeh, on an assured shorthold tenancy for a term of one year from 17 December 2016 to 16 December 2017, and thereafter on a monthly periodic basis, at a rent of £1500 per calendar month. The tenancy agreement gave the name of the landlord as Mrs Lakhany and her contact address as “C/O O'Sullivan Property Consultants Ltd”.
There is a dispute as to whether this tenancy agreement ( “the 2016 tenancy agreement”) has been replaced by a further agreement. Ms Prempeh's case is that it has, and she has produced a copy of a further tenancy agreement dated 17 December 2017 ( “the 2017 tenancy agreement”). This again is expressed to create an assured shorthold tenancy of the flat at a rent of £1500 per month but with a number of differences. These included the following: first, it let the flat to Ms Prempeh alone, Ms Appiah-Baker having (according to Ms Prempeh) left the flat; second, the term was “one calendar year with 6 months get out clause”; and third, and most significantly, the landlord was not expressed to be Mrs Lakhany but “O' Sullivan Property Consultants”. Mrs Lakhany's case is that no such 2017 tenancy agreement was ever entered into, and that Ms Prempeh simply continued to occupy the flat under the 2016 tenancy agreement. This dispute has not yet been resolved and is not a matter for us: it is a matter that will fall to be determined at trial.
It appears that the rent was duly paid down to the end of 2017 or so, but thereafter the rent fell into arrears. By October 2018 these amounted to over £11,000. From October 2018 to April 2019 regular payments amounting to £1500 per month were made, but these did nothing to reduce the arrears. On 23 April 2019 Mrs Lakhany's solicitors, Philip Ross Solicitors, served a s. 8 notice addressed to Ms Appiah-Baker and Ms Prempeh at the flat. I will have to give more details of the notice in due course but in summary it was a notice warning the tenant that the landlord intended to apply to court for an order for possession on Grounds 8, 10 and 11 in Schedule 2 to the 1988 Act (all of which concern default in paying rent), giving details of the arrears of rent (amounting to £11,238.44 as at 18 April 2019) and stating that proceedings would not be brought until after 10 May 2019. It was signed by Philip Ross Solicitors as the landlord's agent and it gave their name, address and telephone number. Nowhere in the s. 8 notice did it refer to Mrs Lakhany by name or give her address; Philip Ross's covering letter did say that they acted for “your Landlord, Mrs F Lakhany”, but that did not give her address either.
On 14 May 2019 Mrs Lakhany issued a claim form against Ms Appiah-Baker and Ms Prempeh seeking possession of the flat and a money judgment in respect of the arrears.
The first hearing of the claim took place on 25 July 2019 before DDJ Goodman sitting in the County Court at Barnet. This was a short hearing at the end of the day in the undefended possession list. The defendants were represented by the duty solicitor Mr Smith. He took three points. One was that the tenancy agreement in force was the 2017 tenancy agreement and hence that the wrong party had brought the claim. The second was that the s. 8 notice was invalid as it was a “demand for rent” within the meaning of s. 47 of the Landlord and Tenant Act 1987 ( “the 1987 Act”) and hence had to have the name and address of the landlord herself, not just that of her agent. The third was that Ms Prempeh had a claim against Mrs Lakhany in respect of the deposit which it was alleged had not been dealt with as it should have been under the Housing Act 2004; Mr Smith accepted that the maximum amount of such a claim would be £6,000, and that there were rent arrears of £11,173.54, and so accepted that this would not amount to a complete defence (either to the money claim or to the claim for possession), but it would still amount to a partial defence to the money claim.
DDJ Goodman rejected all three points: she found (having heard evidence from Mr Hamza Lakhany, Mrs Lakhany's brother-in-law and an employee of O'Sullivan Property Consultants Ltd, but not from Ms Prempeh, although she was willing to give evidence) that the tenancy agreement in force was the 2016 tenancy agreement not the 2017 tenancy agreement; she did not think there was anything in the point about the validity of the s. 8 notice; and she said that Ms Prempeh could pursue her claim in relation to the deposit separately. She therefore gave judgment in favour of Mrs Lakhany and by her Order dated 25 July 2019 ordered that possession of the flat be given and that judgment be entered in the sum of £11,173.54 for rent arrears.
Ms Prempeh appealed. There were 6 grounds of appeal, but they effectively amounted to three points. Grounds 1, 4, 5 and 6 challenged DDJ Goodman's decision that the relevant tenancy agreement in force was the 2016 tenancy agreement, largely on the basis that various aspects of the hearing were unfair to Ms Prempeh although Ground 4 also criticised her reasoning. Ground 2 raised the point about the s. 8 notice being invalid because it was a demand for rent within the meaning of s. 47 of the 1987 Act and did not give Mrs Lakhany's name and address. Ground 3 was that the claim in respect of the deposit raised an arguable case of set-off and directions should have been given for its trial before the money judgment was entered.
The appeal was heard by HHJ Lethem sitting in the County Court at Central London on 10 December 2019. He gave judgment on 16 December 2019. In a careful and thorough judgment he first discussed the question whether the s. 8 notice was a demand for rent (Ground 2). He was invited to follow the decision of HHJ Saunders, also sitting in the County Court at Central London, in CY Property Management Ltd v Babalola (25 Jan 2019) in which HHJ Saunders had been persuaded by Mr Brown to hold that a s. 8 notice was a demand for rent, but HHJ Lethem, recognising that that judgment was persuasive but not binding, declined to follow it, and concluded that the s. 8 notice was not a demand for rent (at [48]). He then considered the hearing before DDJ Goodman, and although expressing considerable sympathy for her, concluded that her decision could not stand and did not represent a fair trial (at [72]). He therefore allowed the appeal on Grounds 1, 5 and 6. He did not need to consider Ground 4. He then dealt with the claim in relation to the deposit (Ground 3) and concluded that it was wrong in principle that that claim should be dealt with separately as it amounted (if valid) to a set-off and hence a partial defence (at [76]).
In his Order dated 16 December 2019 he therefore allowed the appeal on Grounds 1, 3, 5 and 6, set aside the Order of DDJ Goodman, directed that the matter be listed before a District Judge at the Barnet Hearing Centre with a time estimate of 1 1/2 days, and gave suitable directions for trial. Although he directed that it be heard on the first open date after 10 February 2020, we were told that...
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