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28th February 2017

Is a Counter-Notice served by email valid?

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The Leasehold Reform, Housing and Urban Development Act 1993 (“the Act”) is the legislation which (in brief) deals with the rights of tenants to acquire the freehold to a property from their landlord.
Once the collective group of tenants serves notice on the landlord setting out the terms subject to which they wish to acquire the freehold, the landlord normally has a very small window within which to respond with a counter notice setting out its own proposals.

In the case of Cowthorpe Road 1-1A Freehold Limited v Wahedally CLCC (Ch), 16 February 2016, HHJ Dight, a county court had to decide whether a counter-notice under s.21 of the Act could be validly served by email and whether the court had the power to extend time for service.

Despite an employee of the Tenant confirming that they would be willing to accept service by email, the initial notice by the Tenants specified that service of the counter-notice by email was not accepted. However, notwithstanding the Landlord sent a PDF of its counter-notice by email the day before the deadline. A hard copy was also sent which unfortunately reached the Tenant after the deadline had elapsed.

The Court held that there had not been valid service of the counter-notice. , On a strict application of the Act, the counter-notice must be served in a hard copy form, must be in writing and must not be a copy.

Since service by email did not fulfil these requirements, the counter-notice had not been validly served by the Landlord.

The Court also held that it did not have power to extend time for service of the counter-notice, whether within the Act or elsewhere.

This had the unfortunate result of forcing the Landlord to accept the Tenant’s substantially more onerous proposal in its original notice.

Serving notices and counter notices in the correct manner and within the requisite timescales is therefore crucial. The Court may not have discretion to give leave to remedy the position at a later date.

For further information please contact Bela Zavery on 020 7400 5032 or click here to email Bela.