The introduction of the Reasonable Recipient test in Possession Proceedings

Pease v Carter & Anor [2020] EWCA Civ 175 – ‘Reasonable Recipient’ test for Section 8 Notices Seeking Possession

Section 8 of the Housing Act 1988 (“the Act”) relates to proceedings by Landlords for possession of properties let on assured tenancies on one of the grounds specified in Schedule 2 to the Act. Those grounds includes ground 8, which refers to there being rent arrears of at least 8 weeks.

Section 8 provides that the landlord must serve a notice in the prescribed form on the tenant stating:

• The relevant statutory ground of possession
• That the landlord intends to begin proceedings for possession on that ground; and
• That those proceedings will not begin earlier than a date specified in the notice, which date must be at least two weeks but not more than twelve months from the date of the service of the notice

Outcome of the case

The Court of Appeal has recently held in the case of Pease v Carter & Anor [2020] EWCA Civ 175 that the ‘reasonable recipient’ test applies to notices served under Section 8 of the Housing Act 1988, that is if a reasonable recipient would appreciate that the notice contained an error, for example a date, and would appreciate what meaning the notice was intended to convey, then that is how the notice is to be interpreted.

The Appellant in this case (“the Landlord”) served notices of proceedings for possession under Section 8 of the Housing Act 1988 (“the Notices”), on the Respondent (“the Tenants”) on 7 November 2018. The Notices however stated that the court proceedings would not begin until after “26 November 2017”. The Judge in the County Court held that the Notices were invalid based on the date being incorrect even though it was a clearly a typographical error.

The Landlord appealed on two grounds:

1. The Judge was wrong to hold that the reasonable recipient test did not apply to section 8 Notices
2. In the alternative, the Judge was wrong to hold that the Notices were not “substantially to the same effect” as the prescribed form

The Court has upheld the appeal by applying the “reasonable recipient test”, as the date was an obvious typographical error and that a reasonable recipient would have understood that the intended date the notice was intended to expire was 26 November 2018 and accordingly the Notices did serve the statutory purpose.

How does this judgement effect Possession Claims going forward?

Firstly, this case is fundamental in how the courts will interpret notices served by landlords in possession claims made using mandatory grounds, in cases such as this. The significance of this is that in claims relying upon mandatory grounds, the court has no discretion. They must make an order for possession if the paperwork is correct.

This case has the ability to change this landscape entirely. To what extent will landlords now claim there is an obvious typographical error that would have been obvious to the reasonable recipient?

This test only goes so far in saving defects and so it remains crucial to get a notice right and attention to detail in the service of notices continues to be extremely significant. However, with the reasonable recipient test, essentially, tenants may well find it more difficult to argue a notice is invalid on the basis there are typographical errors in the notice.

Equally, should a Landlord make an error in their mandatory notices, the reasonable receipt test may save them from not having to serve a fresh ‘valid’ notice arguing that the recipient of the notice would have otherwise understood what the notice intended to convey. This case has provided much needed clarity on the question of whether the Mannai test applies to statutory notices, and in so doing, will avoid further costly and time-consuming litigation on the point.