Tenancy Agreements invariably contain the addresses of the Landlord and Tenant. But what happens when those addresses change and subsequently a notice needs to be served? We consider the recent case of Grimes v Essex Farmers and Union Hunt Trustees [2017] EWCA Civ 361, which has shed light on this issue, and its consequences for the drafting of tenancy agreements.
This case concerned approximately 121 acres of land at Althorne, near Burnham-on-Crouch, in Essex, which was let on a series of tenancies over many years by the Trustees of the Essex Farmers and Union Hunt to Mr Terence Grimes.
The most recent farm business tenancy agreement governing his occupation contained a clause which stated:
“Either party may serve any notice (including any notice in proceedings) on the other at the address given in the Particulars or such other address as has previously been notified in writing.”
The Particulars were at the beginning of the agreement and set out Mr Grimes’ original address.
The Hunt chairman and former joint master, Mr Clarke, wrote to Mr Grimes in the penultimate year of his tenancy terminating his tenancy from the end of the fixed term. The note was sent to the address for Mr Grimes shown in the written tenancy agreement. This was despite the fact that Mr Grimes had given Mr Clarke written notice nearly 6 years earlier of his change of address. Mr Clarke subsequently granted a new farm business tenancy to a new tenant with effect from the date of expiry of Mr Grimes’ fixed term tenancy.
Mr Grimes brought an action claiming that his tenancy had not been validly terminated, he had been wrongfully dispossessed and being unable to farm the Holding, he had suffered loss and damage estimated at £80,600.
Mr Grimes claimed that he knew nothing about the notice as it had been served at the wrong address, but the Judge, sitting at Chelmsford County Court, found that the old address was still valid as it was the address given in the Particulars, and it remained a good address for service even after receipt by the landlords of the notice of change of address.
On appeal, the Court of Appeal found that a notice to quit could have been validly served on the tenant at his old address at any time before he notified the landlords of another address, even though he no longer lived there.
The Judge noted:
“One evident purpose of specifying an address in the Particulars is to provide an address for service under clause 14.2, and if the tenant then moves from that address without notifying the Trustees of his new address, he must clearly be taken to accept the risk that notices served at the specified address will not come to his attention.”
The Judge found that it would be surprising if it was open to the landlords to serve a notice on a tenant at his old address, as shown in the Particulars, even though they had been duly notified of his new address.
“As a matter of commercial common sense, the parties must have intended that the new address, once duly notified, should supersede the original one shown in the Particulars. Otherwise, an unscrupulous landlord, in full knowledge of the tenant’s actual current address, could continue to send notices to the tenant’s original address years after he had moved.”
Having been sent to his former address, after the change of address had been notified, the notice to quit was therefore not validly served on Mr Grimes and his tenancy was not validly terminated at the end of the fixed term. Mr Grimes was awarded damages in respect of his losses.
Section 36 of the Agricultural Tenancies Act 1995 provides a framework for the service of notices under the farm business tenancy regime. This framework sets out requirements and presumptions regarding service of notices, but also allows express terms to be agreed between the parties, which will extend the statutory methods, depending on the written terms.
If a tenancy agreement is silent on the service of notices then section 36 will apply and in relation to the specific question of the address to be used when serving a notice, section 36(2)(b) refers to a notice being duly given to a person if it is “left at his proper address”. Section 36(6) then goes on to provide that (except in relation to a company) the proper address will be “the last known address of the person in question”.
Following the Grimes case landlords and their agents will need to continue to take great care to send notices to the correct address. Strictly speaking if a tenant has moved, but has not notified the landlord of the change of address, the landlord should remain entitled to serve notices on the former address, even if the landlord is aware that the tenant has moved. In case, however, the Courts come to a different conclusion at some point in the future, it would be prudent for a landlord in those circumstances to send a notice to both the original and the new address.
Once a tenant has given a landlord written notice of a change of address however, the landlord must use the new address, even if he also chooses to copy notices to the earlier address by way of belt and braces.
Although the Grimes case provides useful guidance on selecting the correct address to use, it is better if a tenancy agreement contains a clear statement that the original address is to be used until such time as a change of address is notified by one party to the other, from which point the new address should be used in place of the original one.
In light of this decision and the potentially expensive consequences of selecting the wrong address, landlords and their agents would be well advised to check their tenancy agreements to see how their notice provisions work and to consider how the Grimes decision will impact on their written terms.
For more information please contact Vivienne Williams, Partner in the Agriculture team.
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