Law Report: Possession notice requirements: Mountain v Hastings - Court of Appeal (Lord Justice Gibson, Lord Justice Mann and Lord Justice Nolan), 24 March 1993.

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To satisfy the requirements of section 8 of the Housing Act 1988, a notice for possession of a dwelling let on an assured tenancy did not need to set out verbatim the full text of the relevant ground in Schedule 2 to the Act, so long as the words actually used in the notice fully set out the substance of the ground so as to give the tenant the information Parliament intended him to have.

The Court of Appeal allowed an appeal by the defendant tenant, Joanne Hastings, against the decision of Mr Recorder Trigger, sitting in Preston County Court on 2 October 1992, granting the plaintiff landlord, Henry Mountain, possession of a flat.

Jan Luba, (Jeff Brailsford, Rimmer & Co, Preston), who did not appear below, for the tenant; F P Nance (Rawsthorn, Edelstons, Preston) for the landlord.

LORD JUSTICE RALPH GIBSON said the tenant had a monthly periodic tenancy at a monthly rent of pounds 160 from June 1990. It was an assured tenancy within section 1 of the 1988 Act.

On 30 July 1992, the landlord served a notice seeking possession which was intended to be a valid notice under section 8. This stated:

'(1) The court shall not entertain proceedings for possession of a dwelling house let on assured tenancy unless (a) the landlord . . . has served on the tenant a notice in accordance with this section. . .

(2) The court shall not make an order for possession on any of the grounds in Schedule 2 to this Act unless that ground and particulars of it are specified in the notice under this section. . .'

The main point in the appeal arose on the way the landlord specified the grounds on which he relied, in particular ground 8 in Schedule 2 to the Act, for which he wrote 'At least three months rent is unpaid.'

The full text of ground 8 provided: 'Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing (a) if rent in payable weekly or fortnightly at least 13 weeks rent is unpaid; (b) if rent is payable monthly, at least three months rent is unpaid; (c) if the rent is payable quarterly, at least one quarter's rent is more than three months in arrears; (d) if the rent is payable yearly, at least three months rent is more than three months in arrears; and for the purposes of this ground 'rent' means rent lawfully due from the tenant.'

In his Lordship's judgment, the landlord's notice was defective; but not, as the tenant had argued, because ground 8 was not 'specified' by the full text of that ground as set out in Schedule 2.

Instead, his Lordship preferred the view that the ground in Schedule 2 might be validly 'specified in the notice', as required by Parliament, in words different from those in which the ground was set out in the Schedule, provided that the words actually used set out fully the substance of the ground so that notice was adequate to achieve the legislative purpose of the provision.

That purpose was to give to the tenant the information which the provision required to be given in the notice to enable the tenant to consider what she should do and, with or without notice, to do that which was in her power and which would best protect her against the loss of her home.

The word 'specified' took its particular meaning from its context. The requirement in section 8(2) was to specify the ground: it was not that the ground be set out verbatim as in Schedule 2. But neither was it merely to identify the ground. It must be specified in terms which set out all the necessary information, namely the substance of the ground relied on.

In the present case, the notice was defective because the words 'At least three months rent is unpaid' did not specify ground 8.

The omitted information was that 'both at the date of the service of the notice. . .and at the date of the hearing . . . at least three months rent is unpaid . . . and. . . 'rent' means rent lawfully due from the tenant.'

LORD JUSTICE MANN and LORD JUSTICE NOLAN agreed.

Paul Magrath, Barrister.

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