Goat, on 10 February 2012 - 05:29 PM, said:
I think it's interesting that, Damocles attempted diversion in Laine and Mitchell v Cadwallader & Cadwallader apart, no relevant case law has been posted on this thread.
Surely if there was some validity in the cliam that the notice to quit has no effect on the landlord's position we would have seen this in court. Surely some smartarse landlord would have tried to sue his tennant for damages by now.
So my challenge is this: please find me some relevant case law that demonstrates that a statutory notice can be served without the server accepting the results of the notice.
Shouldn't be too hard for you, no need to restrict yourselves to property, you've got the whole body of English civil law to work with.
I am not sure why you refer to my quoting Laine and Mitchell v Cadwallader & Cadwallader
as an attempted diversion. I think it helps my case, but I conceded that you may have a point. Further, I went on to argue my position on the basis that the case was of no assistance.
As for you call for relevant cases, it depends on what sort of notice you are serving. A notice of intention to start court proceedings commits the sender to nothing. A valid notice to quit (and I refer to a proper notice to quit) has a consequence for the server because it brings the tenancy to an end and cannot be withdrawn. Without more, a section 21 notice really has no consequences for either landlord or tenant and is no more than a requirement that has to be fulfilled before the landlord can apply for possession. It quite definitely does not bring the tenancy to an end. Since there is a call for cases, perhaps you can come up with one that says that if a landlord serves a notice that does not end a tenancy the tenant can up and leave.
There are many points of law (and more than one or two arising out of the Housing Act 1988) that have not been the subject of a court case. (Remember that bank charges have been around for ever, but we only had a case very recently that determined they were not in the nature of contractual penalties.) If we had one on this point we would know where we were.
We do not really need cases here though because it is all in the Act. My main point really is this:
Before the HA 1988 was passed could a tenant on a periodic tenancy end it unilaterally without giving a notice to quit? The answer is that he could not. Did anything expressly set out in the Act change that? That answer is that it did not. Can a change be implied? Not that I can see. It is in any event surely the sort of change that needs to be spelled out.
This means that all there is to fall back on is the contents of the notice. I have a lot of sympathy with the view that since the notice requires possession a landlord can hardly complain if he gets it. The problem with that is (i) that we have no indication of when the tenant can leave and (ii) that it would give rise to the anomaly that the notice had the effect of terminating the tenancy at the election of the tenant without telling the landlord he is going; there is nothing whatsoever in the Act that can support that.