What happens if a Notice is defective?

The Court of Appeal looks set to resolve the diverging approaches by the Courts as to the consequences that flow from a failure to comply with a statutory or contractual requirement about the form of a notice.

The case which is the subject of the appeal was concerned with the statutory requirements of s13 Leasehold Reform and Urban Development Act 1993. The tenants had failed to identify in the notice one of the flats in the block. The Tenants contended unsuccessfully that the flat was not a flat for the purpose of the Act so it did not need to be included in the notice. Having lost on that point the decision for the Court was the effect of the failure to comply with the mandatory requirements of section 13.

Our clients successfully argued, by reference to Cadogan v Morris [1999] 1 EGLR 59 amongst other cases, that the failure was fatal and the notice was invalid. Indeed Morgan J had already said as much in Sinclair Gardens v Poets Chase [2008] 1 WLR 768. That was also a case that turned on section 13 of 1993 Act. In the absence of a relevant statutory saving provision a non compliant notice could not be saved and was invalid.

However, the Appellants argue for a different approach relying on the decision in Siemens Hearing Instruments Ltd v Friends Life Limited [2013] EWHC B15 (Ch). In that case, Mr N Strauss QC had to determine the effect of a failure to comply with a contractual notice required to operate a break clause. He concluded that the same principles apply equally to contractual and statutory notices and that where the Statute or contract provides that a non-compliant notice will be invalid or effective that is the end of the matter. In contrast with Poets Chase, however, he said that where the draftsman has not provided, either way, for the consequence of non compliance, “one may reasonably assume that this is deliberate, and that it has been left to the court to decide”

Following permission given by Lewison LJ, therefore, the apparently divergent approach between these 2 cases, and the whole question of failure to comply with the statutory requirements for notices, looks set now to be revisited by a full Court of Appeal in June 2014.

Clifford Tibber is a member of the Anthony Gold property disputes team and is experienced in all types of residential and commercial leasehold disputes.