Q&As

If a residential tenant lacks mental capacity, how should a landlord serve a valid notice to quit or notice seeking possession on that tenant?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 11/07/2018

The following Private Client Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • If a residential tenant lacks mental capacity, how should a landlord serve a valid notice to quit or notice seeking possession on that tenant?

Under section 1 of the Mental Capacity Act 2005 (MCA 2005) there is a presumption that a person has capacity unless proved otherwise. The test as set out in MCA 2005, s 2 asks whether the person has an impairment or disturbance in the functioning of the mind or brain, whether temporary or permanent, and whether the person is unable to make the decision in question because of that impairment. The question of capacity is specific to the decision in question. Under MCA 2005, s 3, a person is considered to lack capacity if they are unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making the decision, or communicate the decision.

The service of a notice to quit, notice seeking possession, or section 21 notice (depending on the

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