The recent House of Lords case, Scottish & Newcastle plc v Raguz  UKHL65, provides a welcome decision for Landlords. The decision overturned the outcome in the Court of Appeal case. The interpretation of section 17(2) of the Landlord and Tenant (Covenants) Act 1995 (the "1995 Act") had been that Landlords would be required to serve warning notices on former tenants and/or their guarantors on rent payment dates pending a review, in order to remain entitled to claim from them in the event of default by a current tenant at a future date.
The House of Lords, by majority decision, clarified that the additional rent that may become payable following a rent review would not be regarded as "due" for the purposes of section 17 of the 1995 Act until the rent review is agreed between the parties or determined by a third party.
Historically, the privity of contract rules in landlord and tenant relationships meant that an original tenant continued to be liable for the tenant covenants under the lease after their interest in the lease has been assigned to a third party. This permitted a landlord to enforce the tenant covenants either against the current tenant under the lease or a former tenant. The law was reviewed in the 1980s and the 1995 Act was later enacted. This abolished the privity of contract rules for new leases from 1 January 1996 (subject to a few exceptions). The position for leases entered into prior to the 1995 Act was largely unchanged. There were, however, a few provisions in the 1995 Act which controlled the exercise of the landlords' rights. One such control was the service of notices under section 17 of the 1995 Act and it is the interpretation of this clause that was the principal subject matter of this case.
The facts of the case
The case involved rental payments due in respect of two underleases originating in 1967 and 1969. Scottish & Newcastle plc were the original tenants. Multiple assignments had since taken place and in 1999 the current tenant was in financial difficulties. The current tenant defaulted on rental payments and by October 1999 administrative receivers were appointed by their lender. The landlord sought to recover the unpaid rent from Scottish & Newcastle plc as a former tenant.
At the time, there were rent reviews outstanding in respect of both leases. Over a series of successive quarter days when rental payments were due, the landlord served notice on Scottish & Newcastle plc in relation to the amounts that were due. At the times of the determination of the rent reviews, further section 17(2) notices were served in relation to the respective amounts due to pay the balance of rent due as a result of the rent reviews. Scottish & Newcastle plc paid the sums requested of them. The payments were made in response to their liability as former tenants. Also, payment was made in order to limit their ongoing liability. The settlement of outstanding arrears was a condition of the landlord permitting an assignment of the underleases, which would stem Scottish & Newcastle plc's liability for any further charges under the lease for the foreseeable future.
Scottish & Newcastle plc raised a claim against Mr Raguz who was the tenant to whom Scottish & Newcastle plc had assigned their interest in the lease. The claim was raised in terms of section 24 of the Land Registration Act 1925 (the "1925 Act") whereby the person to whom a transfer is made covenants with the transferor that the transferee will "keep the transferor and the person with the right in title under him indemnified against all actions, expenses and claims on account of the non-payment of rent….".
The dispute arose as Mr Raguz was refusing to pay on the basis that the notices served by the landlord on Scottish & Newcastle plc were not properly served. Therefore Scottish & Newcastle plc ought not to have paid the sums requested from them. Based on this Mr Raguz believed that he was not responsible for indemnifying Scottish & Newcastle plc for the payment of the additional balance of rent under the rent reviews. Mr Raguz argued that the indemnity under section 24 of the 1925 Act did not apply to sums that the original tenant was not legally obliged to pay. In addition Scottish & Newcastle plc had some commercial gain from paying the sums to the landlord, namely that they were then able to assign the underleases to a third party. It was the opinion of Mr Raguz that the indemnity under section 24 of the 1925 Act did not apply in such circumstances.
The Lower Courts
The Judge at first instance decided that the landlords were too late to recover the additional payments for balancing rent following the determination of the rent review in that their use of the section 17(2) notices did not render Scottish & Newcastle plc liable. The notices under section 17(2) of the 1995 Act for the amount "due" should have left open the option to serve a further notice under section 17(4) of the 1995 Act within three months of the rent review having been determined. However, the judge did agree that Scottish & Newcastle plc were entitled to recover the amounts regardless of that, as the landlord's consent to the assignment was conditional upon such payments and this would have been regarded as "expense" covered by the indemnity under section 24 of the 1925 Act. The Court of Appeal dismissed the appeal. Two issues then arose in the House of Lords: Mr Raguz's appeal against the decision that he was liable under section 24 of the 1925 Act; and Scottish & Newcastle plc's appeal against the interpretation of section 17 of the 1995 Act with regard to the service of notices in relation to outstanding rent reviews.
The decision in the House of Lords
The decision in the House of Lords was based mainly on the interpretation of section 17 of the 1995 Act. In terms of section 17(2) the former tenant is not liable under the tenant's covenants in the lease unless "within the period of six months beginning with the date when the charge becomes due, the landlord serves on the former tenant a notice informing him (a) that the charge is now due; and (b)… the landlord intends to recover" that charge from the former tenant. In addition, section 17(4) states that any amount that the landlord would charge cannot exceed the amount mentioned in the notice served under section 17(2) save in so far as the former tenant has been notified that the amount requested in the section 17(2) notice may increase. The landlord must also serve a further notice (under section 17(4)) on the former tenant within a period of three months after the date of the determination of the uncertain amount that is then subsequently determined.
The interpretation in the House of Lords was that an amount cannot be "due" if it has not yet been determined or agreed. When it is subsequently agreed or determined it then becomes due and accordingly the correct form of notice for the additional amount of rent payable following a rent review would be a section 17(2) notice rather than a section 17(4) notice. It was regarded as contrary to common sense and commercial practice to expect the landlord to be serving a section 17(2) notice with the section 17(4) warning that a sum that has not yet been determined, may be due. Until such times as the rent renew has been determined, no amount is in fact due and therefore the current tenant cannot be in default of payment of it.
The Lords looked to the guidance notes from Parliament from the time of the enactment of the 1995 Act. Although these were useful to show the context in which the legislation was framed, they were not regarded as conclusive. In fact it became apparent from them that the situation as arose in the Scottish & Newcastle plc v Raguz case was not one that was contemplated at the time of the drafting of the notice provisions.
It was held by the majority in the House of Lords that it was unlikely to have been Parliament's intention that a landlord was required to serve notices about the possibility of a default situation every quarter during a rent review in order to protect its position. It was accepted that this interpretation of section 17(2) would require meaning that section 17(4) was erroneously drafted. However, it was regarded as preferable to reach this conclusion as opposed to promoting the practical situation whereby landlords were required to serve protective notices on former tenants at every quarter day pending a review stating that no rent was due and outstanding in order to preserve landlords' rights against a former tenant.
The other matter that was being considered by the House of Lords was in relation to the extent of the indemnity under section 24 of the 1925 Act. It was concluded that Mr Raguz's appeal was to be dismissed and that bearing in mind the covenant was for an indemnity, it was not limited to payments that the assignor was legally liable to make (albeit the majority of the Lords agreed that Scottish & Newcastle plc were liable to pay the money requested by the landlords).
The leasehold market will continue to have pre-1996 leases for a number of years to come. It is therefore an important decision by the House of Lords to ensure the smooth running of leasehold management issues in respect of such leases that section 17 notices have been interpreted in this way.
Had the decision not been overturned by the House of Lords, landlords would still be required to serve notices on former tenants at every quarter day during the period of outstanding rent reviews. There is no doubt that many opportunities for recovery of rental payments would be lost due to technical issues if the correct notice was not duly served on time. In the current market where there is an increase in tenants defaulting on leasehold property it will be reassuring to landlords that there is a clear interpretation of the notice procedure required in terms of the 1995 Act when dealing with the liability of former tenants.
If you wish to read the full transcript of the case click the link below: http://www.bailii.org/uk/cases/UKHL/2008/65.html