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Ending a tenancy following the death of the tenant: Court of Appeal clarifies Notices to Quit regime

19.02.2021

By Dr Christina Lienen

When an assured or secure sole tenant dies and there is no other person entitled to statutorily succeed to the tenancy, a contractual tenancy will continue to exist despite security of tenure having, inevitably, been lost. Where the deceased tenant has left a will, the contractual tenancy will vest in their executors. Where no will exists, the contractual tenancy vests in the Public Trustee (Administration of Estates Act 1925, section 9(1)).

What then are the relevant steps a local authority, or any other landlord for that matter, needs to take (pre-probate or letters of administration being granted) for the contractual tenancy to come to an end, enabling the landlord to ultimately retake possession? 

In the case of intestacy, section 18 of the Law of Property (Miscellaneous Provisions) Act 1994 sets out a procedure for termination before probate or letters of administration have been granted. It provides as follows:

“(1) A notice [to quit] 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 Court of Appeal grappled with the correct interpretation of section 18 in the recent case of Gateway Housing Association v Ali (Deceased) [2021] 1 WLR 289. The Housing Association landlord had served a notice to quit (“NTQ”) at the property on the Personal Representatives of Mr Ali, the tenant who had recently passed away, on 17 October 2018. It had also served a copy of the NTQ on the Public Trustee but not until 30 October 2018. Both notices stipulated that they would expire at the end of a period of the tenancy four weeks from service of the respective notice, i.e., on 18 November and 2 December 2018 respectively. Ms Begum, who had remained in occupation despite having no statutory or contractual right to do so, defended the subsequent possession claim contending that the NTQ were defective; specifically, she argued that section 18 required them to expire on the same date.

Her argument was accepted by the County Court at first instance, and Gateway’s possession claim was dismissed. The Court of Appeal (the appeal having been leap-frogged) allowed the landlord’s appeal. Key to its reasoning was that the two NTQ referred to in section 18 are not of equal value; the operative notice is the one served on the Personal Representatives under section 18(1)(a)  - i.e. at the Property - whereas the notice served on the Public Trustee under section 18(1)(b) is merely a copy. At paragraph 40 of the judgment it was said:

“It is fundamental that what is served on the Public Trustee is only a copy of the notice to quit. It is not an independent, self-standing notice.”

What was the Court of Appeal’s conclusion, and what do landlords have to bear in mind going forward?

  1. If a copy of the NTQ is served on the Public Trustee before the NTQ served at the property expires, it complies with section 18.
  2. Completing these steps will mean the tenancy will come to an end on the date on which the NTQ served on the Personal Representatives at the property expires.
  3. Note that the copy of the notice must be served on the Public Trustee at PO Box 3010, London WC2A 1AX and must be accompanied by Form NL1 (application for registration) and the appropriate fee.

As the Court said at paragraph 53 of the judgment:

“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. It is both necessary and reasonable to interpret section 18 accordingly in order to make the legislation workable.”

This judgment provides welcome clarification and certainty for landlords, especially after county court judgments such as in Gateway or Pavey v Hackney LBC (2017).