In the event that a tenant should die, the tenancy remains and in order to bring the tenancy to an end, a notice to quit must be served at the property and a copy notice on the Public Trustee. It is necessary for both recipients to be validly served before valid notice has been given.
This article considers the method to effect valid service of notice to quit in the event of a tenant’s death.
How to serve a notice to quit before grant of probate
Section 18 of the 1994 Act sets out the method of service after death for notices that affect land interests:
(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if—
(a) it is addressed to “The Personal Representatives of” the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and
(b) a copy of it, similarly addressed, is served on the Public Trustee.
Method of service
When a tenant dies and his tenancy forms part of his real and personal estate it vests in the Public Trustee until the grant of administration or representation, pursuant to section 9 of the Administration of Estates Act 1925, and section 14 of the Law of Property (Miscellaneous Provisions) Act 1994.
In accordance with section 14 of the 1994 Act, the vesting of the tenancy in the Public Trustee does not actually confer any beneficial interest in the tenancy, nor does it create any obligation of liability. It is purely for the purpose of performing administrative functions to receive and record information.
It must be stressed that before the grant of probate, for a notice to be validly served, it must be served on both the deceased and the Public Trustee. Service on just one recipient will not be enough.
Case Law on How it Works in Practice
Pavey v LB Hackney, 21 November 2017
In this case, the Public Trustee was not served until five months after the Personal Representative at the property. On the date of expiry stated on the face of the notice, service was incomplete because the Public Trustee had not been served. This would invalidate the notice on the property. In this case, notice was void for uncertainty because the Public Trustee received it so long after the stated expiry date which resulted in uncertainty with respect to when the final date of the tenancy was.
To explain, a notice will state a date when the notice is to expire but added to this are words such as “or at the end of the period of the tenancy expiring next [four weeks] [one month] [other period] after the service of this notice upon you.” This is known as a “saving clause” to comply with the requirements both of a four-week minimum notice period (if a dwelling) and that the notice must end on the last day of a period of the tenancy (Hussain v Bradford Community Housing Ltd EWCA Civ 7630).
A person receiving a notice months after the expiry date stated on its face can be in receipt of a valid notice, but in the instance where notice is required to be served on two separate recipients, like in the event of a tenant’s death, where service on two different recipients and the notices are received at different times, this would result in each recipient interpreting the expiry date in the notice differently and notice overall would be void.
HHJ Luba held at : “it is important that in both notices there is set out the same date for termination of the tenancy, or the same rubric for determining the date. It cannot have been envisaged by the Law Commission, or by Parliament in enacting the 1994 Act, that the date for determination of the tenancy could or should be understood to be a different date in the hands of two recipients…”
London Borough of Sutton v Dolan, Central London County Court, 17 July 2018 (unreported)
Pavey was distinguished in London Borough of Sutton v Dolan, Central London County Court, 17 July 2018 (unreported). In that case, the claimants served notice to quit on the property on 17 March 2017, which purported to expire on 17 April 2017. They served a copy on the Public Trustee and relied on a letter of acknowledgement from the Public Trustee which stated that the notice had been entered on the register on 12 April 2017. Notice was held to be valid because the claimants had served the Public Trustee before the expiry date stated in the notice and the actual date was not relevant, on the basis that the function of the Public Trustee was merely an administrative one.
The two cases, are at slight contradiction, in that Pavey stipulated that the serving of notice must be made at the same time and communicate the same day of expiry to both recipients. Whereas in Dolan, notice would be valid and recipients would not need to be served on the same date, provided that the Public Trustee received the notice before the expiry date.
If we follow Dolan, the landlord can prove that he served the copy notice on the Public Trustee on any date before the date stated on the face of the notice. The Public Trustee does not have to be served on the exact same day as the personal representative at the property. Thereafter, any notice served on the Public Trustee after the expiry date on the face of the notice would not be valid and this would invalidate notice overall.
The implication of Pavey is that, in the case of a notice that includes a saving clause, the property and the Public Trustee must be served at the same time for the same date of expiry to apply. Furthermore, notice at the property is logically only valid if it includes sufficient information for the recipient at the property to assess the date, method and validity of the other limb of service.
To conclude, these two cases highlight the importance for the Notice to be served on both parties, ideally at the same time, and also that notice be clear and unequivocal with respect to the intended final date of the tenancy. It also highlights the importance in drafting of notices to quit to ensure that there is no room for misinterpretation. It is imperative that two parties do not take the notice to quit as terminating on different dates.
It would be well advised to take the cautious approach, regardless of what the position is under Pavey and/or Dolan. Notice should be served by post at the same time to minimise any chance of delay in service on either recipient or the Public Trustee being served after the date of expiry stipulated in the notice to quit. Further it is well advised to follow up on serving by serving proof of service on each recipient on each party, to put beyond doubt the fact that both recipients are aware of service having been made and the intended date to quit.
Notice to quit served on the personal representative at the property should include the date on which the Public Trustee was deemed served, otherwise the recipient at the property cannot be sure that their notice is valid. If the personal representative at the property is going to refer to the saving clause to calculate the date of expiry, the Public Trustee must be served so as to give rise to the same date of expiry and this must surely be explained in the notice. A covering letter to put beyond doubt the implications of the notice to quit to each recipient should be included to explain the implications of the attached notice. Further, on this analysis, after serving notice on the parties the landlord must surely serve proof of service on the Public Trustee and vice versa so that all recipients are aware and of the same understanding.