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The Executioner Gets It Wrong........

View profile for Robert Bolwell
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As a teenager, my favourite subject at secondary school was always History.  Not the social history that is taught in schools today, but the history of kings and queens, battles and betrayals, treason and treaties. The gorier the story, the more I enjoyed it. I particularly loved the tale of Mary Queen of Scots. Condemned to death in Elizabethan England, the executioner charged with the task of carrying out his monarch’s grim order made a bit of a hash of things. The first blow of the axe bit into the back of Mary’s head. The second actually killed the hapless woman but it was only the third blow that actually decapitated her.

Years later at law college, “execution” took on a somewhat different meaning – the completion of a legal document. It’s something we do every day with scarcely a second thought.  It’s usually done with a flourishing signature in the name of one’s employer on behalf of a landlord. It takes no time at all – indeed it’s the last thing we do before sending out any number of Housing Act notices by e mail or committing them into the post.

Well, we may have to rethink this seemingly simple task. Most of us remember Hastings as the scene of that historic battle of 1066. But it might soon be the focus of another (albeit less bloody) encounter. A number of possession cases heard in the Hastings County Court in recent weeks have been thrown out because notices – principally S.21 notices -  have not been properly “executed”.  A little known provision of the Companies Act 2006  - S.44 - states that when a company executes a document on behalf of someone else, that document must be signed by two officers of the company or a director whose signature is witnessed. Should you work for an agency that trades through a limited company, this provision of the 2006 legislation may well apply to you.  When you are sending any statutory notice to a tenant for example, who should sign it? If you are not personally authorised to complete the document for a particular landlord, it’s going to be your agency details that appear on the form. When that’s a limited company, how many of us look to get two of our directors to sign off the notice?

Hastings County Court is now looking closely at just who signs statutory notices. Even where a tenant does not object to a possession order being made, cases are being thrown out if S.44 hasn’t been followed. Unless or until these cases are successfully appealed it’s going to be a bit of a challenge for some of the larger corporate agents to come to terms with this new judicial approach – especially if the recent rulings are picked up and followed in other courts. In theory, it should only be an issue where a particular notice is in a prescribed form and needs a signature in order to be valid. The new style S.21 notice introduced by the Deregulation Act 2015 falls into this category but not the old style notices that can still be used  on tenancies pre-dating 1st October 2015. A S.8 notice is also in a prescribed format, but at least here a court has a wide discretion if it thinks it is “just and equitable” not to require such a notice in the first place.

So if you are employed by a corporate - large or small – how should you react?  First don’t assume that by the time you read this that the issue will be confined to cases in Hastings alone. Decisions of the County Court are not binding on other County Courts but what one district judge does today can set a trend for others to follow. Google S.44 Companies Act 2006 and understand what the statute requires of a corporate agency doing things in a landlord’s name. Also have a look at your terms of business. One possible way around the problem is for a landlord to state that any individual employee has authority to sign statutory notices on their behalf – not the agency per se. As the 2006 Act only applies to corporates, it’s difficult to see how a district judge could bring S.44 into play if a notice was signed by a named individual who had specific authority under the agent’s terms of business.

What is certain is that we haven’t heard the last of this issue. ARLA Propertymark is aware of the problem this new approach has caused a few agents in the Hastings area. Keep up ahead of things by reading the updates that are regularly sent to members. If you run into similar S.44 problems in other County Courts, do let ARLA Propertymark know. After all you may not get three chances to get it right like Mary Queen of Scots’ executioner!

To speak to a member of our Landlord & Tenant team about this and any other landlord and tenant issue, contact us on 023 8022 1344 or by email at contact@duttongregory.co.uk.