When is a Section 42 Notice Invalid?

From a leaseholder’s perspective, the correct drafting and service of a notice of claim under section 42 of the Leasehold Reform Housing and Urban Development Act 1993 is the most important part of the lease extension process.

If the notice is incorrect then it can prove an expensive mistake because it will be deemed withdrawn and the leaseholder must pay the landlord’s reasonable legal and valuation costs to the date of withdrawal. Furthermore they cannot re-serve another notice for 12 months.

Fortunately there are only a few reasons why a leaseholder’s notice would be deemed withdrawn within two months of its service. The first instance would be where the leaseholder fundamentally doesn’t qualify for a lease extension, such as where they have not owned their flat for a period of at least 2 years. As only one notice under the Act can be in existence at any one time a leaseholder who didn’t qualify because they hadn’t owned for 2 years would have to withdraw their otherwise valid notice in order to serve a new one once they did qualify. They would have to wait 12 months before they could do so even if they qualified in the meantime.

Contrast this with a notice that is invalid for failing to comply with Section 42 even though the leaseholder does fundamentally qualify for a lease extension. In this case the leaseholder may simply serve another notice without withdrawing the first. This is because their first, invalid, notice would be treated as a nullity and would not therefore need to be withdrawn before another notice was served. The 12 months rule would not apply in that case and the new notice could be served straight away. The leaseholder would not escape liability for the landlord’s reasonable costs for having had to deal with the notice though.

Written by Simon Masters

Senior Associate Solicitor

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