In Frederick Levett-Dunn, Howard Evans and Barnett Waddingham Trustees Ltd v NHS Property Services Ltd (2016) the High Court decided that a break notice was properly served at the address stated in the lease.
This was despite arguments that the address was no longer the landlords' place of abode or business.
The defendant was tenant of leasehold premises in Wolverhampton. The lease was granted by four named landlords comprising three individuals and one company. All were stated to be of the same address at Tyburn Road in in Birmingham.
The lease contained a tenant's break option which required the tenant to give not less than 6 months' prior written notice of its intention to terminate. The provisions which governed service of notices incorporated s.196 of the Law of Property Act 1925. This section provides that a notice will be sufficiently served if left at the last-known place of abode or business in the UK of the person to be served.
The notice clause also said that service on any one of the persons comprising the landlord would be deemed to be service on all.
Four separate notices were sent by the tenant by recorded delivery, one addressed to each of the parties named as landlord and all sent to the address given for the landlord in the lease. All the notices were signed for on receipt with the same illegible signature and with a printed name of 'Howard Evans'. This was the name of one of the landlords in the lease.
The notices were delivered on 19 December 2012 to break the lease on 10 July 2013. There was no dispute about the notice period given or the break date stated in the notices.
The landlords claimed that the break notices had not been validly served and that the lease continued because:
- The Tyburn Road address was not in fact a place of business of any of the current landlords
- One of the individual landlords named in the lease had transferred his interest to the remaining landlords, albeit no notice of this had been given to the tenant
- The individual who had received the notices was not Howard Evans because he was elsewhere that day
- The notices did not come to the landlords' attention until after the last date by which notice could have been served.
The tenant argued that s.23(2) of the Landlord and Tenant Act 1927 applied. This section says that unless and until a tenant has received notice of a change in landlord, and the name and address of the new landlord has been given to the tenant, then any notice served by the tenant on the existing landlord will be deemed served on the actual landlord. This section was not expressly incorporated into the lease but the tenant argued that it applied generally to notices served by tenants.
The Court held that s.23 was not of general application and only applied where it was specifically incorporated. Therefore, it did not help the tenant in terms of the change in the landlord.
However, the judge said that 'It would I think strike the detached observer as very odd if a person may tell someone what his address is, never give any indication to the contrary and yet subsequently deny that it is in fact his address'.
As the lease stated - by its incorporation of s.196 - that the landlord may be served at his last known place of abode or business and stated the landlords' address, any reasonable person would understand this to mean that the address was being stated as a place of abode or business for the purposes of the notices clause.
If circumstances changed, the landlord could notify the tenant of its new address; if it didn't do so then any risk of documents not reaching the landlord fell on it. Accordingly, the tenant's notices had been effective to terminate the lease.
- Landlords should be careful to inform tenants of any change of address if they do not want the address stated in the lease to be the place where notices are served
- Tenants should consider the incorporation of s.23(2) into leases to protect themselves in the event of a landlord serving notice of a change of address which the tenant does not receive
- When serving a notice on behalf of a tenant it is best practice to check the current registered office of the landlord company and any address on its title at the Land Registry and to serve at these addresses as well as any address stated in the lease. In this way, expensive disputes can be avoided.