Last week, the NHF published its final version of its new Code of Governance and made some important changes from the previous draft that will impact on those housing associations looking to adopt it.
If a periodic tenant dies without leaving a will, the correct process for bringing the tenancy to an end is to serve a Notice to Quit (NTQ) at the property addresses to “the personal representatives of [name of deceased tenant]”. A copy of this notice must also be served on the Public Trustee, which means sending the Public Trustee a copy of the notice along with form NL1 and the appropriate fee (currently £40).
There is often a delay in sending the copy NTQ to the Public Trustee, either because the housing officer is waiting for a cheque to be raised for the fee, in which case the delay may only be a few days, or because the officer was not aware they needed to send a copy to the Public Trustee, in which case the delay could be considerable. It has always been unclear what impact any delay has on the validity of the Notice.
In March 2017 a County Court decided the case of Hackney LBC v Henry. In this matter, a copy of the NTQ was sent to the Public Trustee over 17 months after it was served at the property. The Council accepted the fixed date of expiry in NTQ could not be effective as it had not been served on the Public Trustee, but sought to rely on the savings clause in the NTQ and argued that the four-week period ran from the date of service on the Public Trustee.
The Judge upheld the tenant’s argument that:
- The NTQ was “served” on the day it was left at the property (albeit, the NTQ was not “sufficiently served” until the copy was sent to the Public Trustee) and therefore the savings clause ran from the day the NTQ was left at the property; and
- Even if the savings clause could be relied on from the date the copy NTQ was sent to the Public Trustee, it would breach the common law requirement for clarity as the deceased tenant’s personal representatives would need information they do not have (i.e. the date a copy was sent to the Public Trustee) in order to ascertain when the NTQ will expire.
The Judge is reported to have stated that “it is not asking a lot of the Claimant to get it right. They only needed to send two notices on the same day” (emphasis added).
Whilst this decision is not binding on other courts (because it was decided in the County Court), it is likely to be persuasive. The case is due to be reported in the next edition of Legal Action Group News which is read by many housing lawyers and advisers. You might start to see Defence solicitors scrutinising the date a copy NTQ (or other relevant notice if it is a fixed term tenancy) was sent to the Public Trustee in more detail and arguing that the Notice was invalid if not sent the same day.
Therefore, we suggest that landlords should:
- Plan ahead so that the relevant notice is served on the property and posted to the Public Trustee on the same day, which might mean delaying service on the property until everything (including the cheque for the Public Trustee) is ready to go;
- Ensure that you keep a copy of your covering letter to the Public Trustee and form NL1 and include these in your particulars of claim or witness evidence when issuing a possession claim; and
- You usually get a standard acknowledgement letter from the Public Trustee, but not always. If you receive the letter of acknowledgement back from the Public Trustee, include this in your witness evidence (either your first statement or a subsequent statement if already issued).
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