Cases - Galinski v McHugh

Record details

Name

Galinski v McHugh

Date

[1989]

Citation

1 EGLR 109

Legislation

• Landlord and Tenant Act 1954
• Compulsory Purchase Act 1965

Keywords

Estate agency - Landlord and Tenant Act 1954 - Compulsory Purchase Act 1965

Summary

The defendant was the tenant of a long residential leasehold tenancy. He had failed to complete his enfranchisement within the statutory time limits and so the landlord served a notice of termination under section 4(1) of the Landlord and Tenant Act 1954 proposing a statutory tenancy. This gave the tenant 2 months to give formal notice (again) of a claim to enfranchise. The tenant did not respond within the 2-month period and so the landlord claimed he had lost the right to enfranchise. The tenant claimed the section 4 notice was invalid as it had been served on his solicitors, instead of him personally. Before the notice was served, the tenant had represented to the landlord's solicitors that his solicitors were authorised to deal with matters on his behalf. The judge at first instance therefore found that he had held them out as having authority to accept the section 4 notice. This finding of ostensible authority was not challenged in the Court of Appeal. Instead, the tenant contended that service on a tenant's agent was not permitted under the Landlord and Tenant Act 1954.

Section 23(1) of the Landlord and Tenant Act 1927 governs the service of notices under the 1954 Act. It expressly permits service on a landlord's agent, but makes no mention of service on a tenant's agent. Therefore the principle of statutory interpretation that the mention of one thing excludes the other was invoked by the tenant. But the court held that the section is permissive, not prohibitive, of modes of service. It expressly offers choices of mode of service in order to assist those obliged to serve notices. The court stated that the exclusion principle is only an aid to construction and would have expected the statute to expressly exclude service on a tenant's agent if that was the intention. The case of Fagan v Knowsley Metropolitan Borough Council (1985) 83 LGR 782 was distinguished. That case concerned section 30(1) of the Compulsory Purchase Act 1965 which states that notices served by the acquiring authority shall be served personally.