Masih v Yousaf [2014] WL 320301 6 February 2014 (no transcript of the judgment available at the moment, working off a Westlaw report)

Section 8 notice

When a tenant is in rent arrears, a section 8 notice may be served and is commonly used where the tenant is in arrears by two months or more rent. The form to be used is a prescribed form [section 8(3)] –

(3) A notice under this section is one in the prescribed form …

The prescribed form is that found in The Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997 and paragraph 3 requires the grounds on which the landlord relies upon to be inserted and also –

… the full text (as set out in the Housing Act 1988 as amended by the Housing Act 1996) of each ground which is being relied on. Continue on a separate sheet if necessary.

Depending on the number of grounds being used, the full text can be quite lengthy and our version of the section 8 notice contains a separate sheet (as allowed by the prescribed form) containing the full text as shown precisely in schedule 2 Housing Act 1988.

Service of notice in this case

In Masih v Yousaf, the landlord served a section 8 notice and the notice included that possession was being sought under ground 8 and stated that the tenant owed at least two months’ rent both at the time that he had served notice seeking possession and on the date of the possession hearing. However, the notice did not contain the “full text” of the ground as required by the prescribed form. The notice simply referred to two months rent being owed.

The Court held that even though it had not mirrored the statutory language, it was sufficient to give a tenant the information required to enable her to consider what action she should take.

Appeal

The tenant appealed to the Court of Appeal on two grounds:

  • the reference in the notice to “rent owed” made the notice defective as it did not give the tenant enough information in circumstances where she had counterclaims against the landlord (for disrepair for example)
  • a strict approach to the prescribed wording was required in respect of the mandatory grounds for possession.

The tenants appeal was dismissed.

On the first argument, the term “rent owed” used by the landlord was the same as “lawfully due” (the term used in ground 8). The court could not conceive of a situation where rent would be owed but not lawfully due.

On argument 2, the Court of Appeal agreed with the first court that even though the wording of the notice had not mirrored the statutory language, it had referred specifically to ground 8 of Schedule 2, Housing Act 1988 and had stated that two months rent were owed. As such, this was sufficient to give the tenant the information that the provision required to enable the tenant to consider what she should do to avoid a possession order, Mountain v Hastings (1993) 25 H.L.R. 427 applied (extract below) [1]

… I prefer the view that the ground in Schedule 2 may validly be “specified in the notice” as required by Parliament, in words different from those in which the ground is set out in the schedule, provided that the words used set out fully the substance of the ground so that the notice is adequate to achieve the legislative purpose of the provision. That purpose, in my judgment, is to give to the tenant the information which the provision requires to be given in the notice to enable the tenant to consider what she should do and, with or without advice, to do that which is in her power and which will best protect her against the loss of her home.

Comment

This is obviously good news for landlords and it allows possession on a section 8 notice even if the form does not contain the precise wording of schedule 2. However, in our view this adds yet more confusion for landlords.

It is clear from recent decisions such as Superstrike or Spencer that the courts are entering a new phase of decision making where account is not taken of the views and thoughts of the average person observing but by moving towards a rules based system and taking the wording of statute literally.

During this transitional phase, it is very difficult to predict the outcome of cases because it depends which method the courts choose to take.

In this instant case, the prescribed form is clear that the “full text” of schedule 2 must be inserted in the notice and even allows for a separate sheet. It might be the case that it is a form which may be “substantially to the same effect” [2] but even so, there is an immense difference between the full text of ground 8 and what was put in this case. This simply cannot be the right decision if using a rules based system.

Don’t get me wrong, if a system of determining cases on what is sensible is being used then, I agree this is the right decision. However, all cases must use the same principles because currently it is almost impossible to predict the outcome of any moderately complicated question or argument.


  1. It should be noted in the Mountain case where the above extract is taken from, the section 8 notice was ultimately held to be invalid. This was not because the words weren’t precisely as those specified in schedule 2 but because ground 8 was not specified on the notice at all – “I would hold this notice to be defective because, in my judgment, it did not specify ground 8 by the words: “at least three months rent is unpaid””.  ↩

  2. Section 8 does not actually provide for the the form to be “substantially to the same effect” but see regulation 2 The Assured Tenancies and Agricultural Occupancies (Forms) Regulations 1997.  ↩

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