Notices containing errors – when can they be served?
The recent Court of Appeal decision in O G Thomas Amaethyddiath v Turner (Thomas v Turner) has further clarified when a legal notice that contains errors will still be effective, and when it won’t. A notice addressed to the wrong person may not be effective even if sent to the correct address.
The “reasonable recipient” test set out in Mannai investment Co -v- Eagle Star Life Assurance has long been relied on by parties to contracts and leases to save notices which contain an error. The test is whether the reasonable recipient of a notice would understand the meaning of the notice notwithstanding the error. If the reasonable recipient would understand the meaning of the notice, it will be legally effective. This could apply even if, for example, a notice contains a clear error relating to an important date.
The limits of this test were explored recently in Thomas v Turner. Mr Thomas occupied an agricultural holding under an oral tenancy. Without the knowledge of his landlord, he assigned his tenancy to a company of which he was the sole director and shareholder, and whose registered office was the same as his home address.
A few days after the assignment, the landlord served a notice to quit to end the agricultural tenancy. The notice was addressed to Mr Thomas and sent to his home address.
Mr Thomas argued that the notice was not valid as it had been addressed to him and not the company which was the tenant. The landlord argued, applying the “reasonable recipient” test, that the notice was valid because it was obvious what the landlord was trying to do i.e. terminate the tenancy.
The Court of Appeal held that the notice was not valid. A notice which was addressed to Mr Thomas and which repeatedly referred to him as the tenant could not be understood by the reasonable recipient as a notice addressed to the company.
Further, it is an essential requirement of a notice to quit that it is “given to” the tenant. As the notice was addressed to and received by Mr Thomas, the Court of Appeal concluded that it had not been “given to” the company.
This decision may seem unfair on the landlord, as they did not know about the assignment to the company, and to some extent Lord Justice Lewison (who gave the leading judgment) agreed. He said:
“I reach [this] conclusion with some reluctance, because it seems to me to be clear that the landlord fell into a trap wittingly or unwittingly created by the tenant. But I do not think that, consistently with principle, we can rescue him from it.”
While this was a decision concerning an agricultural tenancy, the principle to which Lord Justice Lewison referred will apply to all types of legal notices.
The reasonable recipient test will not rescue a notice which fails to satisfy a statutory or contractual requirement, such as in this case where the common law requirement that a notice to quit has to be given to the tenant prevailed even though it was clear to the tenant that the landlord wanted to end the tenancy.
The decision also underlines the importance of investigating who is the correct recipient before serving a notice. Landlords should ensure that the terms of their leases allow them to know with confidence the identity of the tenant.
We strongly recommend taking legal advice before serving any notices.