Liability of original lessee

Citation

(1999), "Liability of original lessee", Property Management, Vol. 17 No. 4. https://doi.org/10.1108/pm.1999.11317dab.002

Liability of original lessee

Commercial Union Life Assurance Co. Ltd v. Moustafa [1999] 24 EG 155

The principal point at issue in this case revolved around the question of whether a Section 17 Notice, which had been posted to the original lessees' last known abode by recorded delivery post but which had been returned to the landlords' solicitors marked to show that there had been no answer at the premises, and that the envelope containing the notice and a covering letter had "not been called for" at the Post Office, had been properly served for the purposes of the Landlord and Tenant (Covenants) Act 1995.

The court had to consider the inter-relationship of the provisions of s.23 of the Landlord and Tenant Act 1927 (which authorises, inter alia, service of notices by registered post), s.1(1) of the Recorded Delivery Service Act 1962 (which extends this to cover service by recorded delivery also) and s.27(5) of the 1995 Act which applies the foregoing provisions to the service of Section 17 Notices, but the real question was whether the failure actually to deliver the notice to the original lessees by recorded delivery meant that the notice had not been properly served. The court considered a number of authorities before concluding that if registered post or recorded delivery post was used the fact that the intended recipient never actually received the notice was irrelevant. The court followed two previous decisions of the Court of Appeal in coming to its decision. Galinski v. McHugh (1989) 57 P&CR 354; [1989] 1 EGCR 109; [1989] 05 EG 89, and Railtrack plc v. Gojira [1989] 08 EF 158. The case of Lex Service plc v. Johns [1990] 1 EGLR 92; [1990] 10 EG 67, which had also been decided in the Court of Appeal and which appeared rather to assume the contrary, was not followed.