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Posted by: John Brace | 17th February 2014

Was the eviction notice lawful in Wirral Council v Kane and Woodley (Fernbank Farm)?

Was the eviction notice lawful in Wirral Council v Kane and Woodley (Fernbank Farm)?

                       

There are a lot of references in this case to the eviction notices served on the defendants and the regulations about the notices. These regulations are the The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004.

Schedule 1 of those regulations detail two forms which are relevant to this and the purposes for which they are to be used.

Form number 1 is for “ending a tenancy to which Part 2 of the Act applies, where the landlord is not opposed to the grant of a new tenancy (notice under section 25 of the Act).”

Form number 2 is for “ending a tenancy to which Part 2 of the Act applies, where—
(a) the landlord is opposed to the grant of a new tenancy (notice under section 25 of the Act); and
(b) the tenant is not entitled under the 1967 Act to buy the freehold or an extended lease..

Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 states “3. The form with the number shown in column (1) of Schedule 1 to these Regulations is prescribed for use for the purpose shown in the corresponding entry in column (2) of that Schedule.”

In other words, if Wirral Council was opposed to renewing the tenancy when the eviction notices were served on the defendants Mrs Kane and Mrs Woodley, they should’ve used form 2 but instead used form 1, which seems to be a breach of regulation 3 of the The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004. District Judge Woodburn did ask Wirral Council to supply him with a copy of the regulations (The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004) during the trial, but instead was supplied with a copy of the form 1.

Wirral Council used form 1 (a copy of form 1 which is included in the regulations is below).

SCHEDULE 2

PRESCRIBED FORMS

Regulation 2(2)

Form 1

LANDLORD’S NOTICE ENDING A BUSINESS TENANCY WITH PROPOSALS FOR A NEW ONE

Section 25 of the Landlord and Tenant Act 1954

IMPORTANT NOTE FOR THE LANDLORD: If you are willing to grant a new tenancy, complete this form and send it to the tenant. If you wish to oppose the grant of a new tenancy, use form 2 in Schedule 2 to the Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004 or, where the tenant may be entitled to acquire the freehold or an extended lease, form 7 in that Schedule, instead of this form.

To: (insert name and address of tenant)
From: (insert name and address of landlord

1. This notice applies to the following property: (insert address or description of property)
2. I am giving you notice under section 25 of the Landlord and Tenant Act 1954 to end your tenancy on insert date.
3. I am not opposed to granting you a new tenancy. You will find my proposals for the new tenancy, which we can discuss, in the Schedule to this notice.
4. If we cannot agree on all the terms of a new tenancy, either you or I may ask the court to order the grant of a new tenancy and settle the terms on which we agree.
5. If you wish to ask the court for a new tenancy you must do so by the date in paragraph 2, unless we agree in writing to a later date and do so before the date in paragraph 2.
6. Please send all correspondence about this notice to:
Name:
Address:
Signed:
Date:

*[Landlord] *[On behalf of the landlord] *[Mortgagee] *[On behalf of the mortgagee]
*(delete if inapplicable)

SCHEDULE

LANDLORD’S PROPOSALS FOR A NEW TENANCY

(attach or insert proposed terms of the new tenancy

IMPORTANT NOTE FOR THE TENANT

This Notice is intended to bring your tenancy to an end. If you want to continue to occupy your property after the date in paragraph 2 you must act quickly. If you are in any doubt about the action that you should take, get advice immediately from a solicitor or a surveyor.

The landlord is prepared to offer you a new tenancy and has set out proposed terms in the Schedule to this notice. You are not bound to accept these terms. They are merely suggestions as a basis for negotiation. In the event of disagreement, ultimately the court would settle the terms of the new tenancy.

It would be wise to seek professional advice before agreeing to accept the landlord’s terms or putting forward your own proposals.

Notes

The sections mentioned below are sections of the Landlord and Tenant Act 1954, as amended, (most recently by the Regulatory Reform (Business Tenancies) (England and Wales) Order 2003).

Ending of tenancy and grant of a new tenancy

This notice is intended to bring your tenancy to an end on the date given in paragraph 2. Section 25 contains rules about the date that the landlord can put in that paragraph.

However, your landlord is prepared to offer you a new tenancy and has set out proposals for it in the Schedule to this notice (section 25(8)). You are not obliged to accept these proposals and may put forward your own.

If you and your landlord are unable to agree terms either one of you may apply to the court. You may not apply to the court if your landlord has already done so (section 24(2A)). If you wish to apply to the court you must do so by the date in paragraph 2 of this notice, unless you and your landlord have agreed in writing to extend the deadline (sections 29A and 29B).

The court will settle the rent and other terms of the new tenancy or those on which you and your landlord cannot agree (sections 34 and 35). If you apply to the court your tenancy will continue after the date shown in paragraph 2 of this notice while your application is being considered (section 24).

If you are in any doubt about what action you should take, get advice immediately from a solicitor or surveyor.

Negotiating a new tenancy

Most tenancies are renewed by negotiation. You and your landlord may agree in writing to extend the deadline for making an application to the court while negotiations continue. Either you or your landlord can ask the court to fix the rent you have to pay while the tenancy continues (section 24A to 24D).

You may only stay in the property after the date in paragraph 2 (or if we have agreed in writing to a later date, that date), if by then you or the landlord has asked the court to order the grant of a new tenancy.

If you do try to agree a new tenancy with your landlord remember

  • that your present tenancy will not continue after the date in paragraph 2 of this notice without the agreement in writing mentioned above, unless you have applied to the court or your landlord has done so, and
  • that you will lose your right to apply to the court once the deadline in paragraph 2 of this notice has passed, unless there is a written agreement extending the deadline.

Validity of this notice

The landlord who has given this notice may not be the landlord to whom you pay your rent (sections 44 and 67). This does not necessarily mean that the notice is invalid.

If you have any doubts about whether this notice is invalid, get advice immediately from a solicitor or a surveyor.

Further information

An explanation of the main points to consider when reviewing or ending a business tenancy, “Renewing and Ending Business Leases: A Guide for Tenants and Landlords”, can be found at www.odpm.gov.uk . Printed copies of the explanation, but not of this form, are available from 1st June 2004 from Free Literature, PO Box 236, Wetherby, West Yorkshire, LS23 7NB (0870 1226 236).

At this point I will quote from my blog about not only the hearing recently, but the one in November 2013.

Wirral Council v Kane and Woodley (case 3BI05210)
Birkenhead County Court
13th February 2014
Court Room 1

This is a quote from Witness statements, rules & regulations, possession and estoppel in Wirral Council v Kane and Woodley (Fernbank Farm).

Where are the regulations?
Sarah O’Brien, counsel for Wirral Council asked what the issues were likely to be? District Judge Woodburn asked her if she had a copy of the regulations relating to s.25 of the Landlord and Tenant Act 1954 c.56?

Sarah O’Brien asked the Judge for the validity of his request? He said that Wirral Council were asserting compliance in their claim. Sarah O’Brien said something and the Judge replied that Wirral Council still had to prove their claim. Sarah O’Brien, counsel for Wirral Council said that there was “never any assertion that the notices were invalid or not served”. District Judge Woodburn said it was for Wirral Council to prove the notices were valid.

Sarah O’Brien, counsel for Wirral Council said that “if it is an issue we can get a copy”. District Judge Woodburn said that “he wasn’t here to rubber stamp” and it would “have to be proved”. He said that he would “have to make sure the notices comply with the legislation” as it was “asserted they were in the prescribed form”. Sarah O’Brien, counsel for Wirral Council said she would ask her solicitor to get a copy. District Judge Woodburn said that subject to that she could start.”

This is a quote from EXCLUSIVE: Wirral Borough Council v Kane & Woodley (a case about Fernbank Farm).

“One of the two defendants said that they had not received any correspondence from Wirral Council since July 2012 except for something last August. Deputy District Judge Grosscurth said that he would include in Mr. Dickinson’s statement as it was relevant. He said any documentation has “got to be disclosed” and under the rules of disclosure they had to disclose everything whether it was in favour of their case or not.”

So was using the wrong eviction notice when a law (Regulation 3 of The Landlord and Tenant Act 1954, Part 2 (Notices) Regulations 2004) states you have to use the correct one isn’t this something Wirral Council should have made the court & defendants aware of? District Judge Woodburn stated that “he wasn’t here to rubber stamp” and it would “have to be proved”. He said that he would “have to make sure the notices comply with the legislation” as it was “asserted they were in the prescribed form”. Was this asserted in Wirral Council’s witness statement or in their claim? If so who signed the statement of truth to this assertion?

Was there confusion as to whether District Judge Woodburn asked for a copy of the regulations or the notice (my notes clearly state he asked for a copy of the regulations)? A blank notice (form 1) was supplied by Sarah O’Brien to District Judge Woodburn but as far as I know not the regulations. Whoever went away from Wirral Council to get it spent a very long time (a few hours) before they returned with (as far as I can ascertain) just a blank notice. Did they read regulation 3 and realise that if they supplied a copy of regulation 3 to District Judge Woodburn he would be likely to rule that Wirral Council served the wrong eviction notice (in breach of regulation 3) on the defendants as that form (form 1) was to be used when the landlord was willing to renew the tenancy whereas Wirral Council should’ve used form 2?

*The above is just my opinion. If anyone wishes to rely on the points made here, I suggest they seek legal advice before doing so. However it does raise a lot of unanswered questions and serious issues about Wirral Council’s conduct during this case. The overriding objective in the Civil Procedure Rules states at 1.1(2) “Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing;” and 1.3 “The parties are required to help the court to further the overriding objective.” If a Wirral Council employee (or a solicitor acting for them) at that trial was aware (or suspected) that the eviction notices were in breach of regulation 3, whoever it was didn’t tell Sarah O’Brien, District Judge Woodburn or the defendants (probably because if they’d done so Wirral Council may have lost their case for a possession order and if District Judge Woodburn found that the eviction notice was invalid because it was the wrong one (in breach of regulation 3) it’s likely he wouldn’t have granted the possession order). Section 52 of the Civil Procedure Rules deals with appeals, however permission to appeal would have to first be requested from either the Birkenhead County Court or the civil division of the Court of Appeal within 21 days of the date of the decision (which is a deadline of the 6th March 2014) and permission to appeal served on the Claimant (Wirral Council) within 7 days after having been served on the court.

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Responses

  1. Based on recent revelations especially with witnesses being pressured in to making various statements.It could be interpreted as perjury or perverting the course of justice,but as this is a civil matter they may get away with it.

    • You are right that it would be seen as a more serious matter in a criminal case. Perjury still applies to civil cases though, as Jeffrey Archer found out when he got a 13 year sentence for two counts of perjury and two of perverting the course of justice in a civil case.

      Allegations of either are criminal matters, it would be up to the Merseyside Police to investigate and the Crown Prosecution Service to decide whether what happened would lead to any charges being brought.

      Personally I think what happened is probably below the threshold at which anyone would be charged with a criminal offence, but does seem to run counter to some of the principles in the Code of Conduct that solicitors are supposed to follow which is enforced by the Solicitors Regulation Authority. Of course the SRA wouldn’t investigate unless someone first made a complaint and to do that they would first have to know who is was who left court room 1 and came back.

  2. John & Will & other interested parties it seems to me having followed the case that Wirral’s solicitors are inept & the defendants previous solicitors Kirwins are equally at fault for not spotting the wrong notice had been served & with typical bluster Wirral council officers were trying to use bully boy tactics & think they are in the right when clearly they are not. I feel sorry for the defendants in this case & admire their local councillor for siding against the council in trying to bring justice in this case. If Wirral eventually win this case then the defendants should be handsomely compensated A,for all the stress &B, for their loss livelihood Where the greedy council are trying to exploit these people to hijack the land for building bearing in mind it is on a flood plain.

    • The point is that Wirral Council have already won this case (this blog post is a write up of District Judge Woodburn’s judgement). It’s a rather arcane legal argument as to which is the correct form to use and requires knowledge of Regulation 3 to know whether it matters from a legal perspective.

      Even if the eviction notice wasn’t properly served, who knows what the legal position is then and whether the tenants are entitled to ask the court to impose a new lease despite not making an application to do so?

      As the possession order doesn’t come into effect for twelve months, there wouldn’t be an issue of loss of livelihood as any appeal (if permission was applied for and given) would be heard before the possession order came into effect.

  3. I’m sure the “Improvement” Board will be horrified to watch the council lurching off the rails so publicly and so soon.

    Their clear advice on “how to cover up effectively next time round guys” certainly hasn’t sunk in.

    • Well from what I remember isn’t the Improvement Board returning next month for a review? Wirral Council has the Lyndale School call ins to decide before then. 🙂


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