Akorita v 36 Gensing Road Ltd

Service charge – Major works – Section 20 of Landlord and Tenant Act 1985 – Consultation requirements – Section 20 notice sent by post to address of demised premises – Appellant tenant residing elsewhere – Appellant disputing liability to contribute to cost of works – Whether respondent landlord “properly addressing” notice to appellant so as to effect service by post within section 7 of Interpretation Act 1978 – Whether meeting contractual service requirements in lease – Appeal allowedThe appellant held a lease of a flat in a building of which the respondent was the landlord. She did not live in the flat but held it as an investment property. The respondent was aware of this and had, on various occasions, written to the appellant at the address where she resided. In 2005, the respondent proposed to carry out substantial repair works to the building, in respect of which the consultation requirements of section 20 of the Landlord and Tenant Act 1985 and the Service Charges (Consultation Requirements)(England) Regulations 2003 applied. The respondent employed a firm of building surveyors to prepare a section 20 notice on its behalf. The lease provided for such notices to be served by being “affixed or left on the Demised Premises” or sent by ordinary post to the lessee’s last-known place of business or abode; unless returned to the Post Office, any notice so posted was to be deemed to have been received or served at the time it would in the ordinary course have been delivered. The building surveyor sent the notice by post but addressed it to the flat rather than the appellant’s home.The appellant subsequently disputed her liability to pay service charges in respect of the works on the ground that the section 20 notice had not been properly served. On a reference by the respondent, the leasehold valuation tribunal (LVT) found that the notice had been properly served in accordance with the terms of the lease, even if the appellant had not received it, and that there was a “reasonable chance” that the appellant had received it.The appellant appealed. She submitted that the notice had not been “properly addressed” so as to effect service by post within section 7 of the Interpretation Act 1978, and that it did not accord with either of the service methods contractually agreed in the lease because: (i) the respondent had failed to serve the notice by post at her last-known place of abode; and (ii) posting the notice to the flat did not equate to having “affixed or left” it on the demised premises, since the two methods of service provided for by the lease could not be combined and the latter did not include service by post.Decision: The appeal was allowed. A notice would not be properly addressed, within section 78 of the 1978 Act, unless it was addressed to the addressee’s last-known place of abode or business or to another address that the addressee had contractually agreed could be used for the service of documents by post. Since the flat was neither, the respondent was unable to show service by reliance upon the 1978 Act. Nor had the respondent complied with the contractual provisions for postal service in the lease. That being so, it was not possible to conclude that the posting of the notice to the flat had none the less amounted to valid service because the notice had been “left on the Demised Premises”. The two contractual methods of service could not be blended together in that way. Moreover, even if it had been possible to conclude that a letter addressed to the appellant at the flat must be deemed to have arrived safely at the building, the system of leaving all post in the communal area, rather than posting it through the door of each individual flat, would mean that the notice would still not have been affixed or left on the demised premises.Further, the LVT’s finding that there was a “reasonable chance” that the appellant had received the notice was based upon a mistake of fact for which neither the appellant nor her advisers were responsible. Moreover, the finding of a “reasonable chance” did not amount to a finding on the balance of probabilities that the section 20 notice had been received, since a probability that was substantially less than 50% could still properly be described as a reasonable chance. Consequently, it was appropriate to reverse the LVT’s conclusion with regard to service and find that, on a balance of probabilities, the section 20 notice had not been served on the appellant.Sophie Weller (instructed by Dodd Lewis) appeared for the appellant; the respondent did not appear and was not represented.Sally Dobson, barrister