Northwood (Solihull) Ltd v Fearns & Ors (2022)

The case of Northwood (Solihull) Ltd v Fearns & Ors (2022) was the second appeal by the landlord on the issue of whether section 44 applies to the signing of tenancy deposit prescribed information certificates where tenancies are granted by company landlords and the tenant's cross appeal on whether section 44 applies to the signing of a section 8 Notice Seeking Possession (Section 8 NSP).

Incidentally, the first appeal held a Section 8 NSP did not have to comply with the requirements of section 44, however the signing of the deposit prescribed information certificate (certificate) did have to meet the requirements and so could not be signed by a sole director otherwise any section 21 notice served would be invalid.

The facts of Northwood were that the certificate was given by the company on 25 July 2014, on its behalf and signed by Ms Brown, a sole director. At that time the Deregulation Act 2015 (the Act) was not in force and as such the paragraph (g) (vii) of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 (2007 Order), as it stood at that time, required a certificate to be signed by the landlord. The meaning of a landlord/landlords in any shorthold tenancy was contained in s.212(9) Housing Act 2004 which included reference to a person/persons acting on a landlord's behalf.

In the circumstances, the signature of a person authorised to sign on the company's behalf was acceptable when the certificate was given in 2014 because the landlord was a company.

The Act retrospectively disapplied s.212(9) Housing Act 2004 meaning that a signature which was valid on a certificate pre the Act could become invalid post the Act. However, the CA felt this was not something which should be determined unless there was compelling reason to do so. Amendment to the 2007 Order and the interpretation of Article 2(3)(a) of the 2007 Order subsequently provided that references to "the landlord" should be read as including a person who acts on a landlord's behalf.

The CA found that in relation to a deposit, this extension applies where the initial requirements of an authorised scheme have been complied with by a person acting on a landlord's behalf. Evidently, Ms Brown was not the landlord as that was the company and the only rational conclusion was she was a person acting on behalf of the landlord and accordingly, the certificate remained valid.

The CA also said that in any event, the certificate was 'substantially to the same effect' as the prescribed form permitted by the Housing Act 2004. The information was authenticated on behalf of the landlord by someone authorised to do so and the landlord's appeal was allowed.

In relation to the tenant's cross appeal that the general position is that the signatory of notices has to have authority from the person required to give the notice, i.e. the landlord and section 44 did not apply. The primary legislation governing notice under the Housing Act 1988 does not require signature of anything, it merely requires "service" of a notice by a landlord in a prescribed form. The only error of the landlord's managing agent, Ms Miles, in the Northwood case was that she, as the authorised signatory of the landlord, crossed out the wrong words identifying the capacity she signed the section 8 NSP in and purported to be the landlord.

The CA held that the error did not affect the validity of the notice and the tenant's cross appeal was dismissed.

In conclusion, the Court of Appeal decision removes a technical defence to section 21 possession proceedings in relation to company landlords and the signing of notices making things administratively a whole lot easier.