Why do judges find the need to be pedantic?

by Readers Question

9:51 AM, 3rd August 2016
About 2 years ago

Why do judges find the need to be pedantic?

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Why do judges find the need to be pedantic?

I had to serve notice on a tenant as the landlord was selling. The tenant couldn’t find anywhere to move to because prices have gone up so much so went to the council and they said they’d house him upon receipt of a court order. The landlord wasn’t happy but it is what it is.pedantic

It came to the end of the section 21 so started accelerated possession proceedings and the tenant didn’t appeal anything as he just wanted his court order, but the judge wrote to the landlord with this:

“Clause 12.3 and note 5 of the tenancy agreement provide for service of notices in accordance with section 196 of the Law and Property Act (recorded delivery post). On what basis is it said that sending by ordinary first class post is good service?”

To be fair I normally deliver by hand and have never had a problem. This was by post as the tenant knew it was coming and he also acknowledged receipt. He just wants the council to house him, so as he hasn’t submitted an appeal. I have to ask what on earth the judge thinks he is playing at.

I have got the landlord to reply with the following so will see what happens, but one has to question the judges motives for being so awkward.

“Further to your letter dated 26th July I would advise the following;
1. s196(1) Law of Property Act 1925 requires the notice to be in writing – which it was
2. S196(3) of the Act states the notice is sufficiently served if left at the last known place of abode – which it was so left when delivered by the postman and receipt of the notice has been confirmed by the tenant.
I hope the above answers your question.”

I was also going to mention Civil procedure rules ( page 2 of the n215 certificate of service) provides for service by ordinary post but thought best not.

I will keep you updated

Mark



Comments

Neil Patterson

9:55 AM, 3rd August 2016
About 2 years ago

Hi Mark,

My only experience of Judges was with our West Brom case.

The first supposedly experienced senior Judge didn't even really understand the nature of a mortgage contract !

The three very senior judges at the appeal understood straight away and we won the case.

Therefore I can only conclude from limited experience that it is very much down to pot luck.

Mark Lynham

10:21 AM, 3rd August 2016
About 2 years ago

I think that is exactly it Neil... in this instance i/my landlord has just been unlucky so we will just have to see what the outcome is but it really should be more consisitent as this case should be very straightforward as the tenant is only interested in his court order so that he can be housed and the poor landlord runs the risk of losing a buyer because time is now marching on over a moo point.

terry sullivan

10:55 AM, 3rd August 2016
About 2 years ago

Councils have been told several times by local govt ombudsman that they should not require an eviction process after valid service of S21--the latter represents the point at which council should take over

Tom Buckland

11:12 AM, 3rd August 2016
About 2 years ago

If the AST provides for service under s.196 LPA 1925, service is deemed to have taken place when "left" at the address (i.e. hand delivered or personally served where proof of physically delivery to the address can be proved, not simply proof of posting) or where the documents is sent by registered/recorded post and not returned.

The conclusion to be drawn is that s.196 LPA cannot be satisfied through service by normal (i.e. unregistered) first class post so technically the Judge is correct. If however the tenant has acknowledged receipt of the notice and you have evidence of this, the landlord can argue that delivery of the notice is proved and the notice has therefore clearly been "left at" the address.

If the Judge won't accept the landlord's written submission he can always request the Court lists a hearing and make representations in person.

Mark Lynham

11:37 AM, 3rd August 2016
About 2 years ago

Reply to the comment left by "Tom Buckland" at "03/08/2016 - 11:12":

Thanks Tom,
i normally hand deliver but in this instance as it was all spoken about with tenant i thought it would be okay to post as really it was just going to be a paper exercise. His acknowledgement of the reciept of notice was by phone though, although i know he wont dispute it as he just wants to get moved and this is the crazy thing, the tenant hasnt appealed the notice.
Totally undertsand that the judge is 'technically' correct which is why i use the word pedantic....

Charles King - Barrister-At-Law

13:31 PM, 3rd August 2016
About 2 years ago

Oh dear! Yes judges are pedantic, but, having appeared in front of many hundreds of them I should say that is their job - especially when looking at laws (whose meaning can only be derived from the words in which they are expressed) or a contract, which is almost always deemed to be the last word on what the parties to it meant. Your tenancy agreement would have had something about service by s.196 LPA in it. That would be almost certainly completely unnecessary: worse than useless except as a piece of jargon to make the agreement look properly legal. You are unlucky that this has been picked up on (and lucky it's not been picked up on before) and you are right to query the judge's approach, but beware. If your contract says you must comply with s.196 then that says notices should be recorded delivery or by hand. Your point about s.196(1) is undermined in that section 196 itself only applies to "notices required or authorised to be served or given by this Act" which a section 21 notice is not, even by the terms of the lease. Tom is right. Another argument, if you get the chance to make it, would be that section 21 expressly allows service by post because it only requires notice to be 'given' (there is authority to say 'given' means 'served', but the contrary could also be argued). Section 21 of the Housing Act, being primary legislation, overrides the contract by which s.196 is incorporated by reference. Geting the tenant to sign that s/he has accepted service on the correct day would certainly help very much. Good luck!

Mark Lynham

14:49 PM, 3rd August 2016
About 2 years ago

Reply to the comment left by "Charles King - Barrister-At-Law" at "03/08/2016 - 13:31":

thanks Charles....
indeed, this is what the front page of the tenancy states.... oh, its a Letting Centre tenancy..

'Section 196 of the Law of Property Act 1925 provides that a notice shall be sufficiently served if sent by registered or recorded delivery post (if the letter is not returned undelivered) to the Tenant at the Property or the last known address of the Tenant or left addressed to the Tenant at the Property.'

One could obviously argue that it has been 'left addressed to the tenant at the Property'.. by the postman....

Also, form n215 provides for service by ordinary post...... whatever the outcome i wont be doing it again though! back to delivering by hand.....

i will report back...

Romain Garcin

18:11 PM, 3rd August 2016
About 2 years ago

To be fair the judge is right and sending the notice by post is not the same as leaving it at the premises.

Carol Duckfield

9:00 AM, 4th August 2016
About 2 years ago

The HCA wrote to all councils I think it was earlier this year to remind them that a court order isn't NOT required in order to treat someone as homeless and that council should not be putting tenants into this position - so legal action should not have been required

Mark Lynham

9:12 AM, 4th August 2016
About 2 years ago

Reply to the comment left by "Carol Duckfield" at "04/08/2016 - 09:00":

Carol, my undertsanding that it was that the eviction wasnt required but a court order is, as this makes sure that the notice etc has been done correctly... i stand to be corrected though.

I understand what you are saying Romain but then what is the point of the N215 which allows it...... i do undertsand he is technically correct, but as there has been no defence by th etenant as all he wants is his court oredr for the council to rehouse him one has to wonder if there is really any need to act like this....

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