One of the areas of greatest concern are the provisions concerning the specification of date upon which proceedings may be raised following the notice and the calculation of that notice. We were recently instructed in a case where all these issues came to the fore.
Section 62 of the 2016 Act provides that a Notice to Leave must be in writing and "specifies the day on which the landlord under the tenancy in question expects to become entitled to make an application for an eviction order to the First-tier Tribunal" this section also specifies that "the day to be specified… is the day falling after the day on which the notice period defined in section 54(2) will expire [our emphasis added]…it is to be assumed that the tenant will receive the notice to leave 48 hours after it is sent".
Section 54 of the 2016 Act provides that the notice period begins on the day the tenant receives the notice (bearing in mind the final provision of Section 62 noted above) and expires om the day falling either 28 or 84 days (depending on the ground being relied upon) after it begins. Applying these two sections in combination essentially means that the actual notice period to be given is 31 or 87 days' notice.
In our recent case there were two points at issue concerning a Notice to Leave prepared by the client's previous letting agent; 1) where the notice is sent by email and acknowledged the same day by the tenant is the notice period still calculated from 48 hours after it was sent or the date it was actually received, 2) if the notice period has been incorrectly calculated by a matter of days does that mean it can no longer be relied upon in order to recover possession of the property?
Two cases are relevant in answering these questions.
Talon Alba Ltd v Lane
This first decision arises from the First Tier Tribunal and considers whether the appropriate approach is to calculate the notice period from the actual date of receipt or the assumed date of receipt. In this case the landlord issued the Notice to Leave by recorded delivery on 13th August, but it was not received until 17th August. There was therefore a disconnect between the assumed 48-hour period and the actual date of receipt. Following legal argument, the Tribunal held that the purpose of Section 62 was to create a reliable assumed date of receipt for the purposes of notice calculation and it was not necessary to consider when the notice was actually received. The Tribunal accordingly held that the period is to be calculated from 48 hours after it is "sent" (whether that be via email, post or personal service) regardless of the actual date of receipt.
Halcrow & Halcrow v Davies & Hunter
The second decision arises from an appeal decision of the Upper Tribunal and considers whether in the event that a Notice to Leave misstates the earliest date upon which proceedings may be raised by a matter of days such a notice could still be relied upon. The Upper Tribunal considered the relevant provisions "set a trap for landlords". The Upper Tribunal re-iterated that the date from which the notice period is to be calculated is the 48 hours after it is sent creating an irrebuttable presumption even if it could be proved to the contrary that it was actually received on a different date. The Upper Tribunal then went on to decide that even where there is an error in the date (in that case due to miscalculation arising from the service provisions), that does not necessarily mean that an error in stating the correct date will "materially affect the effect of the notice". The importance of this determination is that Section 73 of the 2016 Act provides that an error in a document does not render it invalid provided the error does not materially affect the effect of the document. Accordingly, this decision makes clear that provided the period of notice required has actually been given (i.e. proceedings are not raised until that period has passed) the notice to leave may, depending on the circumstances, be relied upon in those proceedings even if there is an error in the date noted as the date on which proceedings could be raised.
