In essence, when there is an ongoing, delayed, rent review it is now necessary for L to serve protective notices on former Ts (and guarantors) in case the current T defaults. Those notices have to be served even though there are no rent arrears, and no real suggestion that there ever will be arrears. But, the requirements of s17 Landlord and Tenant (Covenants) Act 1995 must be strictly complied with. If they are not, then L will not be able to recover the rent review increases from the former T (or guarantor).

Previously we gave illustrations of how the notices need to be served. As a follow-up it is worth remembering that there are two forms of notice prescribed by s17. Form 1 has to be served in all cases throughout the course of the rent review on any former T or former guarantor who is contingently liable. It informs the recipient of an amount payable in respect of a fixed charge, which L intends to recover from them under s17. It also contains an optional paragraph, which warns the recipient that the amount of their liability may subsequently be determined to be greater than stated. That optional warning paragraph must be included in each notice.

In addition, there is Form 2, and that has to be served on the recipient within three months of the final amount being determined (ie when the amount of the rent arrears, arising from the increase in rent, is determined). Unless Form 1 is repeatedly served (typically, within six months of each quarter day from the review date), with the optional paragraph, and Form 2 served (within three months of final determination) then L will not be able to recover the rent review increase (ie ‘arrears’) should T default. For a useful article on Raguz [2007] see 2007] 187 Property Law Journal 11.  © Practical Lawyer