LEGAL landlord case: serving notices on your tenants – get it right first time

Denial of receipt of notices is a recurring theme on the landlord-tenant landscape. Some tenants will deny receipt of a notice in an attempt to prevent or at least delay an eviction process.

It usually comes down to one person’s word against another, difficult to prove one way or the other unless there’s good evidence, and that’s the key to this issue, landlords / agents must pay attention to getting this right.

The test case

In the recent appeal court decision on the D'Aubigny (Appellant) v Khan and another (Respondents) (2025), the decision is useful in that the issues surrounding the serving of notices were clarified – it’s a significant judgement.

The case includes dealing with the service of notices at common law, under contracts and under the Interpretation Act 1978. It defines what constitutes a notice in regard to tenancies.

The facts of the case 

The landlords sought possession of a property let to the tenant under an assured shorthold tenancy using Section 21 of the Housing Act 1988 as amended (both procedures soon to be abolished). 

The tenant acknowledged receipt of the Section 21 notice but denied having received the statutory information required under the S.21 rules – i.e. the gas safety certificate, the energy performance certificate (EPC) and a current version of the How to Rent guide. 

The Deregulation Act 2015 added two sections, S.21A and S.21B, to the Housing Act 1988.

Those documents must be given to a tenant at the start of the tenancy or at lease before the S.21 notice is served. It’s a precondition to any notice served being a valid notice. 

The landlords said that they had sent the three documents to the tenant by post and as a further precaution by recorded delivery. They argued that therefore they had been “given”. 

Their argument was supported with three reasons for their position:

1. The landlords’ representative argued that S.7 of the Interpretation Act 1978 applied in this case and that once they had proof that the documents had been posted and properly addressed, any denial of receipt would need evidence to show that was the case. Simply denying receipt would not be insufficient. Section 7 of the Interpretation ACT 1978 (IA 1978) states:

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary Intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.”

2. The landlord further relied on a clause in the tenancy agreement which stated that: 
   
   “Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if…sent by first class post to the Property”.
   
   
3. Finally, the landlords relied on the common law presumption of receipt of a properly addressed letter that had not been rebutted. At common law, a correctly addressed and posted letter is presumed to be delivered unless the recipient can provide sufficient evidence to prove otherwise.

The rebuttal

The tenant’s representative argued that none of these applied. She argued that the 1978 Interpretation Act did not apply to the Housing Act 1988 and that nothing in the 1988 Act “required” or “authorised” service by post. 

She also argued that the remaining points (the common law rule and the clause in the agreement) did not apply as the documents to be served on a tenant under S.21 were not in fact “notices”.

The ruling 

The Deputy District Judge and Circuit Judge had found for the landlord on all three points and granted a possession order. However, the tenant appealed and subsequently the Court of Appeal also found for the landlord, but only on the second and third points, dismissing the tenant’s appeal. 

The reasoning and classification

1. The Interpretation Act 1978 argument was not accepted because the statute does not expressly refer to service of the documents by post. The judge deemed it not sufficient that service by post is a permissible means of delivery. Therefore, the Interpretation Act does not apply to the S.21 Housing Act 1988 notices.
   
   
2. The letter serving the gas safety certificate and the others was deemed a “notice” within the meaning of a tenancy agreement.
   A notice is simply something which notifies a recipient of something for a formal purpose. 

Therefore, the letter serving the three documents: gas safety certificate, energy performance certificate and How to Rent guide was in fact a notice properly served under the terms of the tenancy agreement

There exists in English law a common law presumption that a properly addressed letter posted is presumed to reach its destination unless the intended recipient can prove the contrary.

The lessons

This is a useful clarification for landlords and agents; however, care should be taken when serving notices to avoid court disputes of this nature, which are invariably very expensive.

Although the assured shorthold tenancy and the accompanying Section 21 processes are soon to be abolished, once the Renters’ Rights Bill passes into law, there will still be occasions when notices (documents) need to be served even when tenancies become periodic only.

It is important that tenancy agreements are up to date – they need to be revised to comply with the new legislation – and should include clauses regarding the serving of notices. 

One such clause should include the serving of notices by electronic (digital) means.

It is questionable whether recorded delivery letters serve a good purpose and indeed can cause delay when tenants refuse to sign and accept delivery. It is preferable to simply follow usual practice and use first-class post with proof of postage from a post office.

Finally, it is a little extra trouble to duplicate the delivery via email or text with attachments, belt and braces yes, but gives solid evidence of intent. You can also therefore also request acknowledgement of receipt. 

See also: https://www.landlordzone.co.uk/news/legal-matters-serving-notices-dont-fall-foul-of-the-law