Henry Smith’s Charity Trustees v Kyriakou

Rent Act 1977, Case 19 in Schedule 15 — Termination of protected shorthold tenancy — Service of notice of intention to take possession — Whether notice properly served — Whether ‘left at the last known place of abode’ — Whether served in time under Case 19 — Appeal from decision of county court judge — Decision on service of notice of general interest The proceedings arose out of a notice given by the landlords with a view to terminating a protected shorthold tenancy held by the tenant — Such a notice, which had to be a three months’ notice, must be served in the period of three months immediately preceding the date on which the shorthold tenancy comes to an end — In the present case that date was May 1 1988 — The two questions which arose were (1) whether there was an effective service at all, and (2) whether, if so, it took place within the three months required by Case 19 To understand the problems it is necessary to describe briefly the situation of the defendant’s dwelling — He occupied a rear bed-sitting-room in a building with frontages to Brompton Road and Egerton Gardens, London SW3 — On the Brompton Road frontage there was a shop occupying the ground floor and basement — There were four upper floors, comprising two flats on the first and second floors and a maisonette occupying the third and fourth floors: this maisonette was divided into a number of bed-sitting-rooms, of which one was let to the defendant — The two flats and maisonette were entered by a standard residential front-entrance door in 63 Egerton Gardens — This gave access to a hallway and stairs which led to the landings off which were the front doors to the flats and maisonette The defendant’s tenancy agreement, after defining ‘the building’ as 63 Egerton Gardens and ‘the premises’ as his rear room on the fourth floor, made provision for the service of notices — A notice was to be properly served if it complied with section 196 of the Law of Property Act 1925 or section 23 of the Landlord and Tenant Act 1927 or (being a notice to the tenant) was addressed to the tenant generally and left at, or affixed to, the premises — The judge accepted that the landlords’ notice under Case 19 was put through the letter slit at 63 Egerton Gardens by a messenger on February 26 1988 — He had been instructed that, if the front door was open, to go in and try to see the defendant, but, if it was shut (as it was) to put the notice with its covering letter from the solicitors through the letter slit, which he did Clearly this mode of service did not satisfy that part of the notice provisions in the tenancy agreement which spoke of leaving the document at, or affixing it to, ‘the premises’, which were defined as the defendant’s rear room — The question was, however, whether it complied with the provisions of section 196(3) of the 1925 Act or the similar provisions of section 23(1) of the 1927 Act about leaving the notice at the ‘last known place of abode’ of the tenant — The judge rejected a submission by the tenant that his ‘place of abode’ was his rear bed-sitting-room and that a correct service must be effected there — The judge held that it was sufficient if the document was left at a place which was the furthest that a member of the public or postman could go to communicate to tenants residing there; in the circumstances, delivery of the notice through the letterbox of the hall was sufficient to comply with either section — The Court of Appeal agreed The second question was as to the date when the landlords’ notice was served, which was critical for the purpose of Case 19 — This was a pure question of fact for the judge, who found, as mentioned above, that the notice was posted through the letterbox on February 26 1988 — The tenant had given conflicting dates as to when he received the notice, end of March or April and April 30 or May 1, but the judge did not believe him — As the notice was, on the judge’s finding, served on February 26 1988, it was served more than three months before June 1, but within three months preceding May 1, in compliance with Case 19 — The Court of Appeal were entirely confident that the judge was right in his conclusions as to both the validity of the notice and the date of service — Appeal dismissed No cases are referred to in this report. This was an appeal by the tenant, Kyros Hercules Kyriakou, from the decision of Judge McDonnell, at West London County Court, granting possession to the landlords, Trustees of Henry Smith’s Charity, of a rear bed-sitting-room at 63 Egerton Gardens, London SW3, let to the tenant on a protected shorthold tenancy. 111 The appellant tenant appeared in person; Miss Anne Seifert (instructed by Denton Hall Burgin & Warrens) represented the respondent landlords. Giving judgment, GLIDEWELL LJ said: By a written agreement dated June 24 1986 the respondents to the present appeal, the Trustees of Henry Smith’s Charity (whom I shall call ‘the trustees’) leased to the present appellant, Mr Kyriakou, a rear bed-sitting-room at 63 Egerton Gardens, London SW3, for two years from May 1 1986, at a rent of £1,500 per annum, payable monthly in advance. Clause 3 of the lease provides that the letting was a protected shorthold tenancy under the Housing Act 1980. That tenancy came to an end on May 1 1988. The provisions in the 1980 Act regarding shorthold tenancies added an additional case, Case 19, to Schedule 15 to the Rent Act 1977. By section 98(2) of the 1977 Act, the court shall make an order for possession if the circumstances of the Cases are as specified in — and then there follow references to a number of Cases in Schedule 15, namely Case 11 onwards, of which Case 19 is one. Missing out inessential words, Case 19 provides as follows: Where the dwelling-house was let under a protected shorthold tenancy . . . and (b)   the proceedings for possession were commenced after appropriate notice by the landlord to the tenant and not later than three months after the expiry of the notice. And then there follows detail of the circumstances in which a notice is appropriate; without quoting the exact words, the requirements are that it has to be in writing; it has to state that proceedings for possession may be brought after its expiry; it has to be at least a three months’ notice; and it has to be served in the period of three months immediately preceding the date on which the protected shorthold tenancy came to an end. In this case, the landlords claim possession of the premises from Mr Kyriakou by particulars of claim in the county court issued on June 6 1988. They claim possession on two quite distinct grounds. First, on the ground that the shorthold tenancy had expired, that an appropriate notice had been served on the tenant on February 24 1988 which brought the tenancy to an end and satisfied Case 19 on June 1 1988. Second, and alternatively, that the tenant was in arrear with his rent. The second ground is a ground upon which the court would have been entitled to make an order for possession but not obliged to do so. In relation to the first ground, by an affidavit sworn in this appeal on October 24 1988, Mr Kyriakou deposed that a notice under the 1980 Act was delivered through the letterbox in the front door of the building, but not until April 30 or May 1 1988. He therefore sought to contend that it was not a valid or effectual notice to terminate his rights on June 1 — and indeed, if it was not delivered until April 30 or May 1 that would be correct, because it would not have been served more than three months before the date on which it was to take effect. The matter came initially before Mr Recorder Goudie QC on September 20 1988. On that occasion Mr Kyriakou was represented by a solicitor, Mr Foley. Although the defence which had been filed did not admit that the tenancy was a protected shorthold tenancy, at that hearing Mr Foley accepted that it was. Although this does not come out very clearly from the defence, it was agreed that the issues were whether the notice required in order to satisfy Case 19 had been validly served at all and, if so, whether it had been served before March 1 1988, which was the effective date for the purpose of making it a three months’ notice. It was ordered that those related issues should be tried first as a separate and preliminary point. It was agreed between Miss Seifert, who then appeared, as she does today, for the trustees, and Mr Foley that if the court concluded that there had been proper service of the notice, and if it had indeed been served before March 1 1988, there was no answer to the landlords’ claim for possession under Case 19. The matter came for hearing on October 5 1988 before His Honour Denis McDonnell in the West London County Court. He held that the service of notice was a good service; that it took place on February 26 1988 and that accordingly the trustees were entitled to an order for possession under Case 19. He therefore ordered that possession should be given up. However, he granted a stay of execution to Mr Kyriakou, pending appeal. Mr Kyriakou now appeals and is representing himself. I must say something first about the nature of the premises in order to explain how the question as to the validity of the service arises. The building containing the bed-sitting-room to which this agreement relates has frontages both to Brompton Road and to Egerton Gardens, SW3. It seems that on the Brompton Road frontage there is a shop occupying the ground floor and basement. There are four upper floors of the building; they comprise two flats on the first and second floors and what is described as a maisonette occupying the third and fourth floors. The two flats and the maisonette are entered by means of a standard residential front-entrance door on Egerton Gardens, numbered 63. That gives access to a hallway and stairs up, which lead to landings off which the front doors to the respective flats and the maisonette are found. The maisonette has been divided into a number of bed-sitting-rooms; it is of one of these that Mr Kyriakou had a tenancy. In the front door of 63 Egerton Gardens there is a large letterbox. Apparently there is also a letterbox at the entrance to the maisonette on the third floor for anybody who penetrates that far. The tenancy agreement contains definitions which are relevant for the purpose of deciding whether service had properly taken place. ‘The Building’ is defined; it shall mean the dwellinghouse and curtilage known as Number 63 Egerton Gardens; ‘The Premises’ shall mean ALL THAT self contained rear room on the fourth floor of the Building and so on. I have already said that clause 3 of the agreement provides that the agreement: is intended to create a protected shorthold tenancy as defined in section 52 of the Housing Act 1980. By clause 8(3) of the agreement: any notice certificate or other document or process served or to be served under or in connection with this Agreement or the Premises shall be properly served if it complies with the provisions of Section 196 of the Law of Property Act 1925 or Section 23 of the Landlord and Tenant Act 1927 as amended by the Recorded Delivery Service Act 1962 or (being a notice to the Tenant) is addressed to the Tenant generally and is left at or affixed to the Premises. The evidence as to service called before the learned judge was that a notice in proper form, accompanied by a covering letter from the landlords’ solicitors, was placed in an envelope addressed to the defendant at the fourth-floor rear flat, 63 Egerton Gardens, and was placed through the letterbox in the front of the house in the early afternoon of February 26 1988. The pleadings refer to the 24th; the notice itself bears the date ’24th February 1988′ and the accompanying letter bears that date, but the evidence was that it was put through the letterbox on the 26th. The young man who put it through the letterbox, a Mr Meeson, who I suppose was working on some sort of holiday job with the agents at the relevant time, gave evidence, which the judge clearly accepted, as to the way in which he served the notice. He said that he had gone to the premises with the envelope; that he had instructions to see if the front door was open and, if it was, to penetrate and see if Mr Kyriakou was in; but if the front door was shut, he was instructed to put the documents through the letter slit, and that is what he did. The part of the provisions relating to notice which provide that it is sufficient if the document is left at, or affixed to, the premises was not satisfied by that service because, as I have already said, ‘the Premises’ were defined in the agreement as being ‘the self-contained bed-sitting-room or flat’, and clearly the notice was not left at, or affixed to, the self-contained bed-sitting-room or flat. So with regard to the validity of the notice, the landlords referred to the provisions of section 196 of the Law of Property Act 1925 and section 23 of the Landlord and Tenant Act 1927. So far as is relevant, the former section, section 196(3) of the Law of Property Act 1925, provides as follows: Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode . . . of the lessee — That is all that is necessary to read. The provisions of the Landlord and Tenant Act 1927 are effectively to the same effect. So the question for the learned judge was whether posting the notice through the letterbox on the ground floor, where it would fall either on to the hall floor or into a basket inside the letterbox, was leaving it at Mr Kyriakou’s last-known place of abode. Counsel who then appeared for Mr Kyriakou argued that his place of abode was the self-contained flat and that unless somehow or other the server of the notice found his way to the self-contained flat,112 he could not effect service in accordance with the statutory provisions. The judge held that that was wrong. He said: . . . what the statute requires is leaving the notice at the last known place of abode, not in it. In my judgment it is sufficient if left at a place that is the furthest that a member of the public or postman can go to communicate to tenants residing there. In my judgment, delivery of the notice through the letter-box of the hall is sufficient to comply with either Section. It is a short point of interpretation of the respective sections of the two Acts; I entirely agree with the judge’s interpretation. A postman could have done no more, had he been delivering something addressed by post to Mr Kyriakou, than put it into the letterbox through which Mr Meeson posted the document. Accordingly, I take the view that the judge was entirely right to conclude as a matter of law that the service was validly effected. There remained the second question, which was a pure question of fact for the judge, as to when the document was served in this way. The judge found as a fact, accepting the evidence of Mr Meeson, that Mr Meeson did post the documents through the letterbox on February 26. That was a conclusive finding, which cannot effectively be challenged in this court. The judge also found as a fact that it came to Mr Kyriakou’s attention not later than the following Monday. Mr Kyriakou himself had given evidence before the judge to the effect that he could not tell the exact date on which he received the notice but that ‘it was at the end of March or April’. Clearly the judge did not believe him and, as I have said, he found as a fact to the contrary and that really is the end of the matter so far as this court is concerned. Nevertheless, it is of interest to consider what other material there is now before us. As I have said, Mr Kyriakou has sworn an affidavit for the purposes of this appeal. In that affidavit, which is dated October 24 1988, he gives a different date from that which he had given in evidence before the judge. He deposes that on or about April 30 or May 1 1988, ‘a notice to seek possession of the above property was delivered by hand by the plaintiff. The notice, together with an unsigned covering letter from the solicitor, was posted through the front door of the building in which the flat was situated’. That is clearly an indication that service of the notice was effected in the way which Mr Meeson described, but it is now said that it was effected on April 30 or May 1. As I have said, that is a date which is different from that which he gave in his evidence before the judge. Before us Mr Kyriakou, who was not on oath of course, has given us a third account. He says this time that two documents were indeed delivered by being posted through the front door, or placed through the letter slit in the front door of the building at the end of February; that they were both unsigned, namely a covering letter from the solicitors and the copy of the notice from the agents. He says that these documents came into his possession a few days later. Then he says that some weeks after that there arrived by post a signed copy of the notice, and that that was the document which he produced to the court at the hearing on October 5. It has never before been suggested, either at the hearing before the judge or in Mr Kyriakou’s affidavit, that the landlords’ agents sought to effect service twice, once by hand and once by post. This is a point which has never been taken before, and the allegation that the notice which was served on February 26 was not signed has not been made before. Therefore, apart from anything else, it is not open to Mr Kyriakou to take the point in this court. But what is much more important, by putting forward these three conflicting accounts of what he says happened, to my mind Mr Kyriakou has made it absolutely clear, if it needed to be clear, that the judge was wholly correct in disbelieving him as to the evidence he gave about service. In these respects his words could not be relied upon. One does not need to go that far, but if any doubt was raised as to the accuracy of the judge’s finding of fact as to the date on which service was effected, I would hold that he was abundantly justified in finding as he did. Mr Kyriakou has also sought to argue another, quite different, point before us, namely that the requirements antecedent to the coming into force of the shorthold tenancy, that notice must be served on the tenant before the beginning of the tenancy, telling him that what he is about to be granted is a shorthold tenancy, was not effected. He said today that, although such a notice appears to have been given, it was not in fact given until after the tenancy was created and that it was backdated. That is a point which nobody has ever taken before, and therefore again it is not open to Mr Kyriakou to take it today. Whether or not it is a product also of his fertile imagination is not a matter into which we need to go. I am absolutely confident that the learned judge was right in the conclusion to which he came and I would therefore dismiss this appeal. Agreeing, BOREHAM J said: I am equally confident that the learned judge came to the correct conclusion with regard to the validity of the notice and the date of service and there is nothing that I can usefully add. The appeal was dismissed with costs; order for possession to take effect 14 days from May 4 1989.