A new approach to notices

That approach has included taking into account the consequences of non-compliance and in particular whether any prejudice had been suffered by the receiving party. In Natt v Osman [2015] the Court of Appeal signalled the return to a strict approach in the interpretation of notices.

In that case the landlord had built a flat in the roof space and granted a long lease of it to his daughter shortly before the initial notice in a collective enfranchisement claim was served. That notice failed to identify the daughter as one of the qualifying tenants and give particulars of her lease.

The existence of the lease made no difference to qualification under the 1993 Act and fairly evidently the landlord knew the information which should have been included in the notice as the lease in question was the one granted by him to his daughter. It was, therefore, common ground that he had suffered no prejudice by the omission to include the relevant information.

The court had to determine whether the failure to identify the qualifying tenant and give particulars of her lease invalidated the notice.

The appellant nominee purchaser argued that it was permissible for the court to take into account the fact that the omission was inconsequential on the facts of the case as the landlord knew the relevant facts.

The court referred to the criticism of the classification of statutory provisions as mandatory or directory in R v Soneji [2005].

In a number of cases following Soneji the courts had held that where there is a failure to comply with a statutory provision it is permissible to look at the actual consequences of the failure in the case and ask whether Parliament could have intended that the consequence of non-compliance was that the step taken was a nullity. The court rejected that approach in the case of statutory notices.

In the case of statutory notices, the court held that the outcome does not depend on the particular circumstances of the actual parties, such as the state of mind or knowledge of the recipient or the actual prejudice caused by non-compliance on the particular facts of the case and held also that this was consistent with the policy of providing certainty in relation to the existence, acquisition and transfer of property interests.

The Chancellor then analysed the provisions of s.13 LRHUDA 1993 and found that strict adherence to its requirements was necessary. He accepted that the participating tenants would not always be in a position to identify in advance who were the qualifying tenants, but found that this point did not outweigh the cumulative indicators of the legislative intention.

The forgiving approach involving consideration of whether a mistake or omission has caused prejudice to the receiving party no longer represents the law. Any mistake in a notice which is not caught by a statutory saving clause or by the Mannai approach (mistake obvious to the reasonable recipient) will now call into question the validity of the notice.

It is a harsh approach and a boon to pedants but it does afford a measure of certainty and it avoids the possibility that identically drafted notices could be held valid or invalid depending on the knowledge of the recipient.