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Section 47

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Service charge demands


Introduction

Section 47 of the Landlord and Tenant Act 1987

Section 47 of the 1987 Act provides that where any written demand to which the section applies is sent to a tenant it must contain certain information relating to the name and address of the landlord. If it does not do so any service charges referred to in the demand will not be recoverable until the requisite information is given:
    "47(1) Where any written demand is given to a tenant of premises to which this Part applies, the demand must contain the following information, namely -
      (a) the name and address of the landlord, and

      (b) if that address is not in England and Wales, an address in England and Wales at which notices (including notices in proceedings) may be served on the landlord by the tenant.

    (2) Where -
      (a) a tenant of any such premises is given such a demand, but

      (b) it does not contain any information required to be contained in it by virtue of subsection (1),
    then (subject to subsection (3)) any part of the amount demanded which consists of a service charge (“the relevant amount”) shall be treated for all purposes as not being due from the tenant to the landlord at any time before that information is furnished by the landlord by notice given to the tenant.

    (3) The relevant amount shall not be so treated in relation to any time when, by virtue of an order of any court, there is in force an appointment of a receiver or manager whose functions include the receiving of service charges from the tenant.

    (4) In this section “demand” means a demand for rent or other sums payable to the landlord under the terms of the tenancy."

Landlord’s address in demand

Address of the agent

Beitov Properties Ltd v Martin
[2012] UKUT 133 (LC)

Summary

The requirement in s47 of the Landlord and Tenant Act 1987 to give the landlord’s address in a demand for payment of service charges is not satisfied by giving the landlord’s agent’s address.

Facts

The LVT raised with the landlord (L) the question of the address given in the landlord’s demand for service charges, although that this had not been a matter of concern to the tenant who did not attend the hearing.

The demands, which had been prepared and sent by L's managing agents, contained the following statement:
    “Notice is hereby given pursuant to the Landlord and Tenant Act 1987 section 48 that all notices (including notices in proceedings) may be served upon the Landlord…”
This then went on to give details of L but gave the address of its managing agents and not that of L.

The LVT held that the amounts demanded were not payable because the demands had not complied with the requirements of the Landlord and Tenant Act 1987, s.47 in that they had not contained the address of L. The section requires the notice to contain:
    “(a) the name and address of the landlord, and

    (b) if that address is not in England and Wales, an address in England and Wales at which notices (including notices in proceedings) may be served on the landlord by the tenant.”
The appeal

L appealed to the Upper Tribunal (Lands Chamber). L argued that the Act does not prescribe or limit the particular address to be used by a landlord and provided the address is one with sufficient connection with the landlord and at which it could receive communications, s. 47 is satisfied.

Dismissing the appeal, the President said:
    “the purpose of the requirement in [s.47(1)] (a) to provide the address (as well as the name) of the landlord is not solely for the purpose of providing the tenant with an address at or through which he can communicate with the landlord. That is clear because (b) provides that, if the landlord's address is not in England and Wales, an address in England and Wales must be given at which notices may be served on the landlord by the tenant.”
As to the correct address, the President continued:
    “In the case of an individual this would be his place of residence or the place from which he carries on business. In the case of a company it would be the company's registered office or the place from which it carries on business. If there is more than one place of residence or place from which business is carried on, then, depending on the facts, it may be that any one of such addresses will do.”

Defect in the demand

Correction with retrospective effect

Johnson v County Bideford
[2012] UKUT 457 (LC)

Summary

Any invalidity in a service charge demand that arises by virtue of a failure to comply with s47(1) of the Landlord and Tenant Act 1987 is capable of being corrected with retrospective effect so that demands were valid demands for the purposes of s20B(1) of the Landlord and Tenant Act 1985.

Facts

The landlord served service charge demands dated between 1 October 2008 and 12 July 2010. It was accepted that these demands failed to comply with the requirement in s47(1)(a) of the LTA 1987, which requires a demand to contain certain information about the name and address of the landlord.

The LVT determined that certain amounts for the three accounting years 2007/08 to 2009/10 were costs that were reasonable for the purposes of s19 of the 1985 Act. It also held that the service charge demands had not complied with the requirements of s47 of the LTA 1987.

Following the service on the tenants of demands on 8 June 2011, on the landlord’s application, the LVT determined that the service charge demands for the three years complied with s47 and had been duly served. The tenants appealed.

Decision

The Lands Chamber dismissed the appeal and found for the landlord.

The tenants argued that, following Brent v Shulem [2011] EWHC 1663 (Ch), the demands for the purpose of s20B(1) of the 1985 Act must be a valid demand so that the original demands, being invalid by reason of their failure to meet the requirements of s47(1), could not constitute demands for this purpose.

The Lands Chamber held that the invalidity with which Brent v Shulem was concerned was a contractual invalidity, and this was not capable of retrospective correction. By contrast, an invalidity that arises by virtue of a failure to comply with the requirements of s47(1) is one that can be corrected and can be corrected with retrospective effect. This was provided for in s47(2).

But not on LVT application

Triplerose Ltd v Grantglen Ltd
[2012] UKUT 204 (LC)

Service charge demands failed to correctly identify the landlord as required by s47 of the Landlord and Tenant Act 1987. The failure could not be rectified by the provision of the correct name and address of the landlord on the application to the LVT. Consequently, the LVT had erred in finding that the service charge was payable (Beitov Properties Limited v Elliston Bentley Martin [2012] UKUT 133 (LC) applied.



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