Slip Of The Pen Errors - Expiry Date on Notices

This article has been updated to include Pease v Carter & Anor [2020] EWCA Civ 175 (17 February 2020) about a date put on a section 8 notice. See also at the bottom under further information for a link to the critical Northwood case (2022).

The information in this article is scattered around the website, which acts as a consolidation exercise to make the information easier to find. 

This article looks at the slip of pen errors on notices and some brief case-law. Most information is taken from Mannai Investment Co Ltd v. Eagle Star Assurance [1997] UKHL 19.

Starting point - if it’s wrong, it’s wrong.

It is worth starting with the vital principle that it will generally be ineffective if a notice contains an incorrect date. 

In Hankey v. Clavering [1942] 2 K.B. 326, the lease was for a term of 21 years from 25 December 1934 with a break clause allowing either party to determine the lease at the expiration of the first seven years by six calendar months’ notice. The landlord gave the tenant notice which said:

… I will be obliged if you would accept the six months’ notice to terminate your client’s lease which I am allowed to give on June 21, 1941. This would mean that he would have to give up the cottage on December 21, 1941.

This was a clerical error; the notice should have expired on 25 December, not the 21st. Further, this would have been obvious to the tenant what the correct date should have been. Nevertheless, Lord Green M.R. said -

“This appeal raises a short point in connection with a break clause in a lease wherein the plaintiff was the lessor and the defendant was the lessee. By his letter of January 15, 1940, the plaintiff, on the face of it, was purporting to determine the lease by notice on December 21, 1941. The whole thing was obviously a slip on his part, and there is a natural temptation to put a strained construction on language in aid of people who have been unfortunate enough to make slips. That, however, is a temptation which must be resisted, because documents are not to be strained and principles of construction are not to be outraged in order to do what may appear to be fair in an individual case.”

His reasoning was as follows -

“Notices of this kind are documents of a technical nature, technical because they are not consensual documents, but, if they are in proper form, they have of their own force without any assent by the recipient the effect of bringing the demise to an end. They must on their face and on a fair and reasonable construction do what the lease provides that they are to do. It is perfectly true that in construing such a document, as in construing all documents, the court in a case of ambiguity will lean in favour of reading the document in such a way as to give it validity, but I dissent entirely from the proposition that, where a document is clear and specific, but inaccurate on some matter, such as that of date, it is possible to ignore the inaccuracy and substitute the correct date or other particular because it appears that the error was inserted by a slip. By the clear wording of this notice the plaintiff purported to bring the lease to an end on December 21, 1941. In so doing he was attempting to do something which he had no power to do, and, however much the recipient might guess, or however certain he might be, that it was a mere slip, that would not cure the defect because the document was never capable on its face of producing the necessary legal consequence.”

Although this applies to a contractual break clause, the principle applies to all notices. That is why most section 21 notices containing the wrong date are considered invalid, even when it might be evident to the tenant what the correct date should have been.

Section 13 rent increase held invalid

In addition, in Mooney v Whiteland [2023] EWCA Civ 67, where a rent increase notice under section 13 Housing Act 1988 was sent to a tenant with the start date of the new rent being a Friday when it should have been a Monday, the notice was held invalid by the Court of Appeal.

Exceptions to the general rule

There are exceptions to this general rule where there is a latent ambiguity in the notice. For example, in Doe d. Cox v. Roe (1803) 4 Esp. 185, the landlord of a public house in Limehouse, gave the notice to quit “the premises which you hold of me … commonly called or known by the name of The Waterman’s Arms.” On the evidence, the only property let by the landlord to the tenant was a public house called The Bricklayer’s Arms; moreover, there was no public house in Limehouse called The Waterman’s Arms. 

The notice was held effective in respect of the tenancy of The Bricklayer’s Arms, the case being treated as one of latent ambiguity. Another example occurs when a date is specified in the notice, which, as is plain from the face of the notice, was stated in error for the valid date that the giver of the notice must have intended to specify. This will usually occur nowadays through a simple typing error. In such a case, the given date can be construed as a reference to the actual date. 

An example of this principle can be found in Carradine Properties Ltd. v. Aslam [1976] 1 W.L.R. 442, where there was a break clause in a lease, which required a date to take effect in September 1975. A notice given by the landlord in September 1974 specified a date in September 1973. It was evident that a date in 1973, which had already passed, could not have been intended by him, and it must have been a clerical error and could correctly be read as intended to refer to 1975. In these circumstances, Goulding J., applying ordinary principles of construction, held the notice to be an effective notice to determine the lease on 27 September 1975 and said, in paragraph 446:

“In an option clause the requirement is that a party must strictly comply with the condition for its exercise. If the condition includes the giving of a particular notice, it seems to me that the logical first approach is to interpret the notice, looking at the words and applying legal principles to their construction, and then ask whether it complies with the strict requirements as to the exercise of the option. If that is right, I think that a benevolent approach could be applied in this case, as in Doe d. Duke of Bedford v. Kightley (1796) 7 Durn & E. 63, because reasonably read by a reasonable tenant the mistake is obvious on the face of it, and there is no doubt what the mistake was. Therefore one interprets the notice as asserting an intention to determine in 1975. It is true that if whoever made the mistake had typed 1976 instead of 1973, the error would probably have been incurable because although the tenant might suspect there was a slip, it might be that the landlord did intend 1976, not knowing or understanding his rights under the lease. In such a case the tenant would be entitled to disregard the notice but because a past date was given in the notice it is insensible and therefore an authority such as the Duke of Bedford’s case is in point.”

Note an essential part of this reasoning -

It is true that if whoever made the mistake had typed 1976 instead of 1973, the error would probably have been incurable because although the tenant might suspect there was a slip, it might be that the landlord did intend 1976, not knowing or understanding his rights under the lease.

This principle of an obvious error to a reasonable recipient was further confirmed in Pease v Carter & Anor [2020] EWCA Civ 175 (17 February 2020), related to a section 8 notice served on 7 November 2018. Still, the date of expiry said 26 November 2017. The Court of Appeal held at paras 43 and 44:

... Counsel for the Tenants did not dispute the Judge's conclusion that "2017" was an obvious typographical error, but it is common ground that that is not sufficient to satisfy the reasonable recipient test: it must also be clear to the reasonable recipient what the intended date was. Counsel for the Tenants argued that the reasonable recipient would be uncertain what the intended date was: if "2017" was an error, then so could "26" and/or "November" be. I do not accept this argument. As the Judge found, the reason why "2017" was an obvious typographical error is that, read in context including the explanatory notes, it would make no sense for a date earlier than that of the Notices to be specified. Thus the reasonable recipient would realise that something must have gone wrong. The reasonable recipient would be aware that a common form of typographical error is typing an adjacent digit to that intended. Counsel for the Tenants submitted that it is commonplace for people to type the date of the preceding year in early January, not in November; but that is actually a slightly different form of mistake, namely a failure to make the necessary mental adjustment. In my judgment the reasonable recipient would conclude that the person who typed the Notices had mistakenly typed "7" rather than "8". Having mentally corrected that error, the reasonable recipient would conclude that 26 November 2018 made sense as being the intended date and would have no reason to think that the day or month were erroneous. Thus I consider that the Judge was not merely fully entitled to make that finding, but correct.

It is essential for a notice containing a wrong date that the error is obvious and not just plain wrong. An example of this becoming problematic is a current case leading to this consolidation article. An agent of the landlord has served notice on 30 December 2014 to expire on 30 February 2015. 

In this case, the corresponding date rule applies to the date, so where the date doesn’t exist, you count backwards until you find a valid date. Therefore, the notice would have been good if it said 28 February 2015 (despite being served on the 30th of the month). But should this date of 28 February be implied in the notice rendering it valid? Unfortunately, I submitted no because what if the landlord intended it to be the 30 March 2015 and the February part was the error? Unlike the year example above, where the year had passed, although there is a slip of the pen error, it is less clear what part of the date contains the error. Therefore, the advice is to serve a new notice in this case. If, however, the notice had said 28 February 2014, I would submit it would have been valid following Carradine Properties Ltd. v. Aslam.

Further information

If the error is contained in a tenancy agreement (such as the wrong rent), rectification may need to be considered, for which, see this article. 

See the critical Northwood case for information about signing notices where a company might be involved. This case also sets out important principles about the validity of documents and notices sent to a tenant and that minor mistakes that don’t materially affect the document or tenant should be allowed.

View Related Handbook Page

Landlord Wants Tenant to Leave

A tenancy of someone's home, starting on or after 28 February 1997, will in most cases be an assured shorthold tenancy. Take advice early if there are any doubts about what type of tenancy is being terminated. The procedures for ending a tenancy are different, depending on the type of tenancy.