Break Notice – All 4 one?
The recent Chancery Division case of Levett-Dunn & ors v NHS Property Services Ltd  EWHC 943 (Ch) considers the validity of a break notice served on four landlords, all "care of" the same address.
The tenant in this matter wished to terminate their lease of "Coniston House", in accordance with the break notice conditions contained in the lease. Four landlords were named in the lease and, pursuant to the lease definitions, the landlords were all of the same address in 2010 when the lease was granted, being "75 Tyburn Road". The tenant therefore drafted four separate break notices, one for each named landlord, with the notices all being served on the same address as set out in the lease seeking to terminate the lease on 10 July 2013, being the end of the third year of the term.
The Claimants issued proceedings challenging the validity of the break notice on the basis that the address on which the notice was served was not the "place of abode or business" for any of the Claimants at the time when the notice was served. 75 Tyburn Road was actually held by the Claimants as an investment asset and was leased to a separate business tenant. It was argued that the Defendant tenant has not exercised reasonable diligence in ascertaining whether the address for the landlords given in the lease remained the correct address. The Defendant sought to rely on s.23(2) LTA 1927 which deemed service on an original landlord's address as good service unless the tenant had been informed of a change.
The Claimants only comprised three out of the four original named landlords as the fourth had ceased to have an interest in the 75 Tyburn Road in 2011 ("former landlord 4""), although it was accepted that this fact had not been communicated to the tenant. Former landlord 4 had, however, taken a business lease of 75 Tyburn Road and was actually the only one of the four original landlords with a business connection to that property. Whilst it was queried whether the tenant could rely on service on landlord 4 on the basis that the tenant was unaware that landlord 4 no longer had an interest in 75 Tyburn Road, this argument was not pressed and it is likely that the tenant would not have been able to rely on service on landlord 4.
It was, however, held that the notices were valid as the original address for the landlords in the lease could be deemed their "abode or place of business" because the landlords had, on the true construction of the lease, nominated it as such. That address therefore remains in place "until the landlord nominates some other address or, perhaps, the tenant acquires actual knowledge that it cannot be an address at which the landlord can be reached" (HHJ David Cooke).
Points to note:
- A party wishing to serve a notice at a particular address bears the burden of showing that the address fits the statutory or contractual criteria relied upon.
If intending to serve on the "last known" address the serving party should exercise reasonable diligence in establishing whether that is, in fact, the last known address.
- If it is discovered that the receiving party is no longer at the original address, but no details can be found of a new address, service can still be made on the original address as that remains the "last known" address.