Communicating with the other side
By
Caroline Shea QC and Mark Galtrey discuss the difficult question of serving property notices after death
Many property disputes raise questions as to the effective service of notices. While minor defects in the content of the notice might not invalidate it, strict compliance with any prescribed method of service is a prerequisite to validity (Mannai v Eagle Star [1997] AC 749).
This requirement seemed fatal in a recent matter in which tenants wished to acquire the freehold of the building in which their flats were situated, and served a notice under section 13 of the Leasehold Reform, Housing and Urban Development Act 1993 to commence that process. They addressed the notice to the landlord by name, as required, and sent it by post to the address given on the registered title of the freehold.
Under the provision of the 1993 Act, a landlord in receipt of such a notice is required to serve a counternotice within two months of the date specified by the tenants. If he does not, the court must order the transfer of the freehold to the tenants at the premium specified in their notice, provided that premium is not unreasonably low (Willingale v Globalgrange [2000] 2 EGLR 55). The tenants had of course specified a premium that was on the low side, but not unreasonably so. Therefore if the landlord did not serve the counternotice in time, they would get the freehold at a low premium without costly litigation.
However, just after the deadline for the counternotice passed, the tenants were informed that the landlord had in fact died overseas several years ago. On death, title to the freehold passes immediately to the deceased’s personal representatives, or the public trustee if he died intestate, even if the deceased’s name remains on the register (sections 1 and 9 the Administration of Estates Act 1925). So there was a new freeholder who was the landlord at the date of the notice, and who had not been served. It appeared that the tenants’ claim was dead and they would have to start again.
But this was not the case. Section 17(1) of the Law of Property (Miscellaneous Provisions) Act 1994 is short but powerful: “Service of a notice affecting land which would be effective but for the death of the intended recipient is effective despite his death if the person serving the notice has no reason to believe that he has died.”
Remarkably, there is no authority on the meaning or effect of this section. However, it seems clear that, if there is no reason to believe that the intended recipient is dead, the statutory magic fixes what would otherwise be two irremediable defects: first, that the notice is addressed to the wrong party, and second, that the notice is served on the wrong party. The correct recipient is deemed by the section to be served with a valid notice.
The effect in the current case was striking. The actual landlord, being the personal representative in whom the deceased’s interest had vested following his death, was fixed with the consequences of not serving a counternotice in time, even though in fact he had never seen the notice, nor was it addressed to him.
If by contrast the serving party does know of the death of the landlord, section 17(1) of the 1994 Act will not assist, and there is a further potential problem. Before the grant of representation, there is no way for the serving party to know who the personal representatives are, and so who the correct recipient is.
The procedure set out in section 18 of the 1994 Act addresses such a situation: “(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if – (a) it is addressed to ‘The Personal Representatives of’ the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and (b) a copy of it, similarly addressed, is served on the Public Trustee.”
If, on the other hand, there has been a grant of representation, a search at the Principal Registry of the Family Division will yield the names of the appointed representatives, and they should be served in their own names.
Points for practice
Upon the death of a client who owns property subject to leasehold interests, notify any tenants to prevent them having the benefit of the 1994 Act;
If your client is a personal representative under a will where the estate contains land, again notify the tenants, and check the post at the deceased’s property for any notices; and
Before serving any notices, check with the client that there is no reason to believe the recipient has died. If there is any doubt, search the registry for any grant of representation and serve duplicate without prejudice notices by the section 18 procedure, or on any appointed representatives, as appropriate.
Caroline Shea QC and Mark Galtrey are barristers at Falcon Chambers