Notice of Possession Proceedings for Introductory Tenants: Islington London Borough Council v Dyer [2017] EWCA Civ 150

06 Nov 2017

Termination of an introductory tenancy requires a Notice of Possession Proceedings (“the Notice”) to be served on the tenant in accordance with section 128 of the Housing Act 1996 (“the Act”). The Notice must make the tenant aware of the intended proceedings and, in accordance with section 128(7) of the Act, shall also inform the tenant of local advice agencies that can assist if s/he requires any help in relation to its contents. Simple enough, but section 128 of the Act does not specify how the information should be presented to the tenant. The courts have considered the question of whether the Notice and additional requirements under section 128(7) of the Act can be contained in more than one document in Islington London Borough Council v Dyer.

Following an incident of violence, Islington London Borough Council (“the Council”) served a notice of intention to commence possession proceedings on Mr Dyer. The documents served consisted of a covering letter, a document entitled ’ The Notice’, and a document headed ’Information leaflet to accompany notice of the proceedings’. Mr Dyer defended the subsequent claim for possession on the basis that the information required under section 128(7) of the Act was not included in the body of the Notice. Mr Dyer’s main contention was that the Act contemplated serving a single document, as opposed to a notice accompanied by a separate information leaflet.

At trial, the judge held that the Notice and the information leaflet was sufficient notice in accordance with section 128 of the Act and granted a possession order. On appeal, Mr Dyer’s argument succeeded on the basis that all of the requirements under the Act are mandatory and should be incorporated into the Notice itself. The Judge held that “…it would have been a very simple matter for the council to have added an additional paragraph…to deal with the help and advice provision…to comply with section 128(7)…”.

The council appealed the decision. The Court of Appeal dismissed Mr Dyer’s argument that the Act contemplated the service of a single document, taking an objective view of the matter to hold that, despite the fact that only one of the documents was entitled the ’Notice’, a reasonable tenant would have realised that both documents should be read in conjunction with each other. The two documents functioned together as the Notice and therefore, valid notice had been given in accordance with section 128 of the Act.

The case demonstrates the court taking a sensible and pragmatic approach to the strict requirements of the Act. However, care must always be taken when serving notices to ensure the requirements are met and to avoid complications when seeking possession, in particular with introductory tenancies, where delays could cause such tenancies to become fully secure. If in doubt, legal advice should always be sought.

For more information, please contact Hannah Joad see below for contact details.

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