The right of tenants of long-leasehold property to extend their leases is a matter of great importance. Getting it wrong, or not applying the rules, can have grave consequences for landlords and tenants. It follows that research on getting your claim and notices served correctly is worthwhile.
Under Section 99 Leasehold Reform, Housing & Urban Development Act 1993 (“LRHUDA”, any Notice shall be “in writing”. If a counternotice is not served in accordance with Section 45(1), it is open to the claimant tenant to apply to the Court, pursuant to Section 49(1) to determine the terms of the acquisition in accordance with the proposals contained in their Section 42 Notice. This can have the effect of the landlord not being able to argue for a higher premium for the extension, and the tenant’s figure in their s42 Notice may be significantly lower than the landlord wants to pay.
There is little case law on the specific point as to whether a notice sent by email is valid, but there is a County Court case of Cowthorpe Road 1-1A Freehold Limited v Wahedally  (unreported).
In that case, the tenant’s solicitors had stated, “We do not accept service by e-mail”, had provided a postal address for service, but the landlord’s solicitors sent the notice by email. Below are two extracts of the Judgement.
“52………It seems to me that one has to start, as I have already said, with section 99 of the requirement that the notice has to be in writing and maybe sent by post, the inference being that the document has to be a hard copy document.
54….. Given that the section 13 requirements are such, it seems to me that by parity of reasoning, albeit that the landlord's notice does not have quite the same importance as the tenant's, that the landlord's counter-notice has itself to be a hard copy document served in top copy form rather than electronically.”
The judge considered that the notice was required in hard copy, as opposed to electronic, which would be a soft copy of an original. There is another County Court authority that email was acceptable service (Achieving Perfection Ltd v Gray (2015) – Unreported, Brighton County Court) but in that case the tenant had requested a postal address and the landlord replied that email was the way to send it.
Paragraph 34-24 of Hague ‘Leasehold Enfranchisement’ Seventh Edition in respect of the Cowthorpe decision provides further comment:
“By contrast, in another case (Cowthorpe) it was held that service of a counter-notice under s.21 of the 1993 Act could not be effected by email, because a hard copy was required. Moreover, the initial notice had been served by solicitors under cover of a letter stating that they did not accept service by email. It is considered that that latter ground is correct in any event.”
In summary, it is best to follow to the letter any information given within a tenant’s s42 Notice as to the correct address and method for service of a counter-notice under LRHUDA. This will avoid costly and risky litigation over the validity of notices, and which may well be out of proportion to the premium figures in dispute.
This article was written by Toby Walker, Dispute Resolution Partner at Allan Janes LLP. You can contact him directly on 01494 893512 or at email@example.com