Getting noticed: who must sign a notice served by a company in enfranchisement cases?

A notice served under a s.13 or s. 42 of the Leasehold Reform, Housing and Urban Development Act 1993 ("LRHUDA") by a company must comply with s. 44 of the Companies Act 2006. Under the Leasehold Reform, Housing and Urban Development Act 1993 ("LRHUDA") both a s.13 notice (an initial notice used to start collective enfranchisement proceedings) and a s.42 notice (the tenant's notice used to start a claim for lease extension) have to be signed personally by "each of the tenants, or (as the case may be) by the tenant, by whom it is given" (s. 99 (5) LRHUDA 1993). This is an unusual provision in the law of landlord and tenant. In most cases a notice can and often is signed by an agent (usually the solicitor) on behalf of the landlord or tenant.

This provision has caused difficulties in the past. In St Ermins Property Company Limited v Tingay, it was held that the signature by an agent appointed under a power of attorney did not satisfy the statutory requirement of signature by the tenant and the Court of Appeal held in Cascades and Quayside Limited v Cascades Freehold Limited that signature by an agent who had been appointed less formally did not suffice. A large number of flats, especially in central London, are owned by companies to avoid stamp duty. The position in relation to execution of a notice by a company was until recently uncertain as there were conflicting County Court decisions. In City and County Properties Limited v Plowden Investments Limited Judge Reid QC held that a notice signed by one director of a corporate tenant was not sufficient. In Hilmi & Associates Ltd v 20 Pembridge Villas Freehold Ltd HHJ Dight, held that a notice signed by one director was sufficient. The latter case was successfully appealed. The court held that signature of both a s.13 notice and a s.42 notice by a company was governed by s.36A of the Companies Act 1985. That section required that the notice either be sealed with the common seal of the company or be signed by a director and secretary or by two directors. That is still the case in relation to any notice served prior to 6th April 2008 but after that date the position is governed by section 44 of the Companies Act 2006. That is still the case in relation to any notice served prior to 6th April 2008 but after that date the position is governed by section 44 of the Companies Act 2006 which provides that a notice which is required to be signed by a company must either be sealed with the common seal of the company or be signed by two authorised signatories or by a director of the company in the presence of a witness who attests the signature.