[2024] UKUT 423 (LC)

The second ground of appeal is that the notice did not give the appellant sufficient time to remedy the disrepair and the infestation, 14 days being insufficient especially in the holiday season. Indeed, it is pointed out that the Fourth Schedule did not mention disrepair at all, only the infestation, yet the disrepair should have been capable of remedy.

It can be seen from the correspondence between the parties’ representatives that the parties regarded the 14 days specified in the notice as 14 working days, and also that the appellant asked for an extension to 25 January 2023. The application to the FTT was not made until 10 February 2023, some seven weeks after the date of the notice. In all that time the appellant did nothing about the disrepair or the infestation, nor indeed for some months after that; the FTT said at its paragraph 65:

“It was also argued that it was unreasonable to specify the period for remedy to be 14 days when the notice was dated 23 December 2022. Here, the Tribunal notes the submissions made by the Applicant that even though only 14 days were provided for within the Notice no attempt to remedy the grounds had been made before the application was made in April 2023. The Tribunal does not find the 14-day period over the Xmas holidays was a detriment to the respondent.”

I believe the reference to April 2023 should be to the date of the respondent’s Statement of Case in the FTT, which was dated 4 April 2023.

What the FTT was saying was that even if the appellant had been given 14 days outside the holiday period, or even a much longer period, he would not have done anything, as is demonstrated by the fact that he did nothing for over four months. Accordingly even if the period was too short, and even though no period at all was given for the disrepair, that made no difference and the notice was not invalidated.

Ms Gray argued that the correct test was not whether there was any detriment to the appellant, but whether the time allowed was realistic, and the FTT had said nothing to show that 14 days was a realistic period for resolving the infestation. Mr Verduyn pointed out in response that it is well established in the context of section 146 notices that where the recipient of the notice is intransigent and is clearly not going to do anything, then the period given cannot be regarded as unreasonable; he referred to Shirayana Shokuan Co Limited v Danovo Limited [2005] EWHC 2589 (Ch), where Sir Donald Rattee (sitting as a High Court Judge) quoted Sir Nicholas Browne-Wilkinson (as he then was) in the Court of Appeal in Billson v Residential Apartments Limited [1992] 1 AC 494 p.508B to E:

“All that the statute requires is that a reasonable time to remedy the breach must elapse between service of the notice and the exercise of the right of re-entry or forfeiture. If the actions of the lessee make it clear that he is not proposing to remedy the breaches within a reasonable time, or indeed any time, in my judgment, a reasonable time must have elapsed for remedying the breaches once it is clear that they are not proposing to take the necessary steps to remedy the breach but are committing further breaches.”

I asked Ms Gray what a reasonable time would have been, and she referred to the appellant’s witness statement where he claimed that a programme of pest control works was needed, and said that some work had been done by May 2023. In fact as the FTT found at its paragraph 67, the appellant carried out work only after an Improvement Notice had been served by Sheffield City Council.

I agree with Ms Gray that the test for validity of the notice is whether a reasonable time was allowed; but again what is a reasonable time is fact-specific, and it is specific not only to the nature of the work but to the facts of the case including the behaviour of the parties. It does not take 14 days to contact a pest control company, and in that sense the time allowed in relation to the infestation was reasonable. Furthermore in circumstances where the recipient of the notice did nothing to deal with the infestation or the disrepair during the notice period, nor during the longer period that intervened before the application was made to the FTT, nor for some months thereafter, he cannot be heard to say that the notice did not give him a reasonable time to remedy the breaches of covenant unless he can show that it was impossible for him to do anything during that time, which he did not make the slightest attempt to show. The period given made no difference to what he was going to do – and I think that was what the FTT meant when it said that it was not a detriment to him.

Accordingly in my judgment the FTT reached the right conclusion. Its reasoning could have been better articulated but the FTT’s reference to the fact that the appellant did nothing until April will have made it perfectly clear to him why his argument about the time allowed carried no weight.