The County Court case of Cowthorpe Road Freehold Limited -v- Wahedally CLCC (Ch) 2016 concerned an enfranchisement claim under Part I, Leasehold Reform, Housing and Urban Development Act 1993 (the 1993 Act).
The 1993 Act requires that notices must be in writing and they may be served by post. Tenants initiate claims by giving a copy of their claim notice to the landlord who in turn must respond by giving a counter-notice by the date specified in the tenants' claim notice. The consequences for a landlord who fails to give a valid counter-notice in time are serious. Tenants can apply for an order to vest the freehold in their names and the landlord loses the right to challenge the terms proposed by the claimant tenants (including the price to be paid for the freehold).
In this case the solicitors acting for the landlord posted the landlord's signed counter-notice to the solicitors acting on behalf of the tenants. It was sent on the last day before the final date for service. On the same day the landlord’s solicitors also e-mailed a copy of the notice to the tenants' solicitors. So, what is the position where the landlord's signed counter-notice is sent in PDF format in an attachment to an email. Is this a valid notice for the purposes of the 1993 Act and has it been correctly served. Counsel for the landlord contended that the 1993 Act simply requires notices to be in writing. Therefore there is nothing which expressly prevents service of the notice in a PDF format by email bearing in mind that Schedule 1 of the Interpretation Act 1978 defines writing as including: typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form ...".
The 1993 Act states that notices "may" be served by post. The "may" therefore is permissive and not mandatory. So, it is perfectly possible that service of the notice may be made by other methods, but however the notice is served it must be in writing.
The judge decided that the wording of the 1993 Act required the notice to be in writing meaning that the notice has to be a hard copy document with a "wet ink" signature. The judge stated that, in his view, it is not possible in the ordinary sense of the word to sign an electronic document with an original signature. Strict compliance with the 1993 Act was required and a PDF copy of the notice sent by email did not amount to "in writing" for the purposes of the 1993 Act. At best it was simply a copy of the original notice. As well, as sending an email the landlord's solicitors had also tried to send the counter-notice by fax, but could not do so because the tenants' solicitors' fax machine was broken. In any event, the judge also held that a faxed notice was not "in writing" and would also have been nothing more than a copy of the original notice which had been put in the post.
Moreover, the tenants' solicitors had expressly stated in correspondence that they would not accept service by e-mail: so the court found that sending the notice by e-mail was not good service. Unfortunately, the posted counter-notice only arrived after the deadline for service had passed. Although, the earlier case of Callendine-Smith -v- Saveorder Ltd [2012] decided that whilst section 7 of the Interpretation Act 1978 states the a notice that was posted, correctly addressed and prepaid is deemed to have been served, this is not so where the ‘contrary’ is proved. In this case, the contrary had been proved so there was no deemed service.
Therefore an order vesting the freehold in favour of the tenants was made for the premium they proposed.
| Key points |
- comply strictly with service requirements both contractual and statutory.
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- check whether service provisions are mandatory or permissive.
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- be wary of serving notices by email
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