1 Notice to quit and preliminary notices
7.44 The tenant’s right to serve a counter notice, and to invoke the protection of the tribunal consent procedure, is excluded where the notice to quit is given in reliance on one (or more) of the Cases for Possession set out in Sch 3 to the 1986 Act.110
7.45 Schedule 3 involves a procedure akin to statutory forfeiture, and notices to quit given under the Cases for Possession are subject to stricter rules of construction than unqualified notices.
The courts have refined the common law principles of construction applicable to notices to quit to reflect the differentiation between different types of notice made by the Agricultural Holdings Act 1986. Historically, the more stringent rules applied in agricultural cases flowed from the general principle that, being a species of statutory forfeiture, the relevant provisions of the 1986 Act111 must be construed strictly so as to require landlords to fulfil their terms to the letter.112 Whether this general approach will survive the House of Lords’ ruling in Mannai Investments v Eagle Star Assurance113 is an open question. The more liberal interpretative principles enunciated in that case are based on the fundamental notion that a notice to quit must be clear to a reasonable tenant, in the sense that it is unlikely to mislead a reasonable tenant with full knowledge of the terms of his lease. Although the Mannai Investments principles will cure minor defects in a notice to quit, it is unlikely that the courts will take a markedly different approach than hitherto to the construction of Notices to Quit under Sch 3, and to the preliminary notices which most of the Cases require to be served. Given the specific factual matrix within which these notices will usually be served (for example alleged non payment of rent or failure to repair) any material error in the facts alleged in a preliminary notice or subsequent notice to quit will, in fact, raise exactly the sort of reasonable doubt in the mind of a tenant which (applying the Mannai Investments criteria) will invalidate the notice. As a result the Mannai Investments principles will not, it is suggested, lead to a markedly different approach to notices under Sch 3 in practice, and the interpretative principles discussed below will survive the Mannai Investments decision.7.46 The general requirements as to certainty and unambiguity have already been discussed.114 Where the Cases for Possession are invoked, the following additional requirements are insisted on by the courts in agricultural cases:
(a)Certainty as to type of notice
7.47 The terms of the notice to quit must be such that no reasonable tenant would be left in any reasonable doubt as to whether it is an unqualified notice (under s 26(1)), or a notice served for any of the reasons specified in Cases A–H of Sch 3 to the 1986 Act).115 If it fails to make this clear it will be void for ambiguity. The tenant must know what challenge to the notice is appropriate (arbitration or reference to the ALT). If the notice is served under Sch 3, but the ground relied on is not substantiated, it cannot take effect instead as an unqualified notice under s 26(1).116 Despite dicta in both Cowan v Wrayford and Mills v Edwards, suggesting that notices should either give reasons appropriate to Sch 3 or no reasons at all, most landlords serving notice under s 26(1) will wish to give reasons so as to exclude a claim for ‘additional’ disturbance compensation. There is nothing to prevent an unqualified notice stating reasons as long as this would not raise doubts in the mind of the reasonable tenant, eg where the landlord served an unqualified notice and stated ‘as a matter of courtesy’ the reasons for which it was given.117 It must be clear on the face of an unqualified notice to quit, on pain of invalidity, that the reasons given are those in s 27(3), and not any of the reasons (breach of tenancy, etc) provided for by Sch 3. The question can be of practical importance; if the notice to quit is void a fresh one will have to be served.
The requirement of at least 12 months’ notice118 means that possession could be lost for between a further one and two years.7.48 Where notice is given under Sch 3 two further rules also apply:
(b)Preliminary notice: certainty as to source of obligations breached
7.49 The preliminary requirements laid down in Sch 3 – particularly those relating to forfeiture for non-payment of rent, or other breach of tenancy, under Cases D and E – must be strictly complied with, or a subsequent notice to quit will be void.119 Notices to pay rent, and to remedy breaches of tenancy, will be strictly construed against the landlord. They must strictly comply with the requirements of the Act, and must be accurate if a subsequent notice to quit is to be valid. So, for instance, a notice to pay rent must accurately identify the landlord on whose behalf it is given,120 and if the rent demanded is specified it must be stated accurately.121 Not every minor inaccuracy will be fatal, however. If the error is de minimis, of no material significance, and bears no direct relevance to the substance of the breach complained of, it will be excused. The notice must, nevertheless, correctly identify the source of the obligation whose breach is complained of.122 It will not, however, suffice merely to say that a reasonable tenant would not have been misled by the notice.
(c)Certainty as to case relied upon
7.50 Although Sch 3 need not be expressly referred to, a notice to quit given pursuant to one of the Cases therein contained will be void for ambiguity unless it is clear on the face of the notice which case for possession the landlord is relying on.123 This is insisted upon because the tenant’s remedies vary according to which Case is invoked, eg arbitration is available to challenge a Case A, B, D or E notice to quit, but not one under Cases C or F. The procedure where breach of tenancy is complained of will also vary depending upon whether it is a remediable breach (Case D) or irremediable breach (Case E), and the notice must therefore make it clear which the landlord is invoking.