Wandsworth LBC v Atwell

A s. 21 notice was not effectively served as it was left at the leased premises but it was not proved that it was brought to the attention of the tenant.

The tenant of a house rented from the council had been granted a weekly tenancy. The tenant’s half-brother later also moved into the property, and and acted as caretaker when the tenant went abroad to work several several years later. The tenant’s half-brother paid the rent whilst the tenant was away.
Two years after the tenant had gone abroad, the council’s manager interviewed the tenant’s half-brother, and then sought to end the tenancy. A notice to quit was left at the property, address to the tenant, and a copy was posted to the tenant’s address abroad (which had been provided by his half-brother). The tenant did not respond to the notice, and his half-brother did not vacate the property. The half-brother pleaded that he occupied the property by permission of the tenant, and that the tenant was a secure tenant and his tenancy had not been properly determined. At the hearing, the tenant gave evidence that he had not received a copy of the notice too quit. The judge made an order for possession, stating that the local authority took all of the steps available to give the notice to the tenant.

On appeal:
HELD: The appeal was allowed, as the Court of Appeal held that the leaving of the notice of the premises was not valid and effective service. Although s. 196 Law of Property Act 1925 provides that a notice can be served if left at the last known place of abode of the person to be served, and this extends to ‘notices required to be served by any instrument affecting property’, the notice to quit served by the council was not actually ‘required’ by the tenancy agreement to be served. The Court held that a tenancy agreement that makes no express provision for the service of a notice to quit to determine the tenancy did not ‘require; such a notice to be served, and therefore s. 196 did not apply.
The Court reluctantly held that although the judge’s decision was sensible, it was not correct in law.
If landlords want to render valid and effective service of a notice by leaving it at the leased premises, without having to prove that it had come to the attention of the lessee, they had to make express provision in the tenancy agreement for such a method of service and should also prove the terms of the agreement in an action for possession following service of such a notice.

Citation: Wandsworth LBC v Atwell (1995) 27 HLR 536