Lodgepower Ltd. v Taylor & Ors

For statutory repair rights to arise, a tenant’s notice must be served on the person who is the landlord under the governing legislation, or on a current agent responsible for management. Service on a deceased landlord’s former agent does not suffice. Nor does receipt by the person most likely to be affected cure a notice addressed to the wrong person. The identity of the landlord turns on entitlement, as between landlord and tenant, to receive the rents and profits. Where land is held on trust, that entitlement ordinarily rests with the trustee holding the legal estate, not merely with a beneficiary or rent recipient.

Lodgepower Ltd, the tenant of an agricultural holding, served a notice requiring repairs on the executors of Katherine Coulthurst, who had died intestate shortly before service. The notice was received by her husband, Fred Coulthurst, who had historically collected rent and dealt with management matters. The legal estate was held by trustees, and after Mrs Coulthurst’s death Mr Dickson was the surviving trustee entitled to receive the rents and profits as landlord for the purposes of the Agricultural Holdings Act 1986.

The Preston County Court held that the notice was effective, either because Mr Coulthurst was the landlord’s agent or under the statutory provision concerning service on an original landlord. The central issue on appeal was whether the notice had been validly served so as to trigger the tenant’s statutory repair rights.

1. Appeal allowed. The notice was ineffective, the county court order of 2 April 2004 was set aside, and the claim was dismissed. Costs and repayment of the £5,000 interim costs payment were ordered as stated in the formal order.
2. Under section 96 of the Agricultural Holdings Act 1986, “landlord” means the person entitled, as between landlord and tenant, to receive the rents and profits. Where the land is held on trust, a beneficiary’s entitlement against the trustee is irrelevant for this purpose. After Mrs Coulthurst’s death, the surviving trustee, Mr Dickson, was the landlord.
3. Section 93(3) requires a present agency, and an agency under which the agent is responsible for control of the management or farming of the holding. Mr Coulthurst’s agency for his wife ended on her death. There was no evidence that Mr Dickson had appointed him, authorised him to receive rent, or held him out as his agent. Receipt of the notice by Mr Coulthurst therefore did not amount to service on Mr Dickson.
4. Section 93(5) could not validate service on a former agent of a former landlord. The court assumed, without deciding, that knowledge of Mrs Coulthurst’s death might constitute notice under section 93(5)(a), but section 93(5)(b) still required service on the original landlord, or a legally effective route equivalent to it. Service on a former agent could not satisfy that requirement. The notice was in any event addressed to Mrs Coulthurst’s executors, not to the landlord or a valid agent.
5. Egerton v Rutter, [1951] 1 KB 472, did not establish a general rule that a notice is valid whenever it reaches the person most likely to be affected. Its agency reasoning depended on necessity in circumstances where the farm had to be carried on. No corresponding necessity existed here. Its alternative reasoning based on falsa demonstratio was also inapplicable. Wilbraham v Colclough, [1952] 1 All ER 979, which followed Egerton, provided no further support.
6. The court observed that the tenant remained able to serve a fresh, valid notice. That possibility did not make the defective notice effective.

• Court of Appeal (Civil Division): Appeal from the Preston County Court allowed. The order of 2 April 2004 was set aside and the claim dismissed.
• Preston County Court: His Honour Judge Mahon held that the notice was effective and granted relief on the issue of liability.