A crucial task for landlords and agents is to correctly serve statutory notices and other documents on tenant/s.
These are usually statutory notices and contractual documents, sometimes in prescribed form (meaning they must contain the correct information / text).
It is important that the notice is served in the correct way and in a way that service can be proven later – many a case arises because the recipient refuses to accept that a notice has been served or argues is was served incorrectly – see below the case of D’Aubigny v Khan & Anor (2023), the case is awaiting appeal.
First off, the method of service should be specified in the contract between landlord and tenant so that both parties are clear about what they have agreed to.
A method of “document service” clause in the letting agreement will inform the parties how documents are to be served. The court will use this clause to determine if the notice is correctly served.
If the agreement is silent on the matter, with any method of document service used, the party serving the document must prove that the recipient was aware of it, which is not easy to do.
Typical documents which may need to be served
There are many documents, some statutory and some contractual which should be served on tenants either before, at the commencement or during a tenancy, including:
Care should be taken to ensure that the notice is served at the correct time. For example, the EPC notice should be given before the tenancy is entered into so that the tenant can assess the running costs of the property before making a decision to take on the tenancy.
The Gas Safety Certificate (GSC) should be served at the commencement of the tenancy, i.e., when the agreement is signed. However, a Court of Appeal ruled in Trecarrell House Ltd v Rouncefield (2020) that landlords can provide the GSC to tenants at any time before or when the section 21 notice is served. The court also emphasised that landlords who fail to comply with the Gas Safety Regulations face other sanctions, including potential criminal liability
The deposit prescribed information must not be served until the deposit has been handed over – see the Siddeeq v Alaian (2024) case where a landlord served the notice too soon. This was a county court ruling which has not so far been appealed.
The notice must be served to the person or persons named on the tenancy agreement. Many landlords and agents will serve just one notice for the tenancy, but if there are more people on the tenancy agreement this is incorrect. For the avoidance of misunderstandings, separate notices (copies) must be addressed to and sent to each person on the agreement.
Where, for example, a Section 21 notice is being served, each tenant should be noted on the form (Form 6A) and a copy of the form and a letter explaining what the form is for delivered and addressed to each tenant.
This action prevents any one tenant from claiming that they did not receive a notice, which could stymie any eviction process.
Part 6 – Service of Documents – of the Civil Procedure Rules specifies how notices can be served.
II SERVICE OF THE CLAIM FORM IN THE JURISDICTION
6.3 - Methods of service
(1) A claim form may be served by any of the following methods –
(a) personal service in accordance with rule 6.5;
(b) first class post, document exchange or other service which provides for delivery on the next business day, in accordance with Practice Direction 6A;
(c) leaving it at a place specified in rule 6.7, 6.8, 6.9 or 6.10;
(d) fax or other means of electronic communication in accordance with Practice Direction 6A; or
(e) any method authorised by the court under rule 6.15.
(2) A company may be served –
(a) by any method permitted under this Part; or
(b) by any of the methods of service permitted under the Companies Act 2006.
(3) A limited liability partnership may be served –
(a) by any method permitted under this Part; or
(b) by any of the methods of service permitted under the Companies Act 2006 as applied with modification by regulations made under the Limited Liability Partnerships Act 2000.
The notices should be served by a method specified in the contract. Serving in person is best served by someone independent of the landlord (agent or process server) or in front of a witness when the landlord serves it. Serving at the property (delivered through the letterbox) should be similar.
My first class post requires proof of postage from a post office. If served by electronic means (e.g., email) then ideally acknowledgement of receipt should be requested and as a precaution the notice should also be delivered by first class post.
In each case at least two working days, excluding bank holidays, should be allowed for receipt of the notice/s.
It is convenient and more certain to serve as many notices as possible when the agreement is signed at the property. This can be done with the landlord or agent present and at the time when the inventory is agreed and signed.
All the necessary notices can then be attached to the tenancy agreement and signed for, as listed on a separate sheet of paper.
Alternatively, if the convenience of email is used to serve these notices, an acknowledgement of receipt must be obtained.
D’Aubigny v Khan & Anor (2023) is awaiting appeal
In this case a possession order was made out by the county court in the usual way – accelerated possession - under Section 21 of the Housing Act 1988.
The landlord acknowledged it was aware that the energy performance certificate, the gas safety certificate, and current “How to Rent Guide” had to be and were served ahead of the Section 21 notice seeking possession.
However, the tenant disputed this and denied having received the documents. It claimed the possession order must fail. As the tenancy agreement made no reference to methods of service of notices the tenant claimed that the landlord must prove service as per Wadsworth London Borough Council v Atwell (1995).
In Wadsworth, a notice to quit was served on a periodic tenant. Section 196(3) of the Law of Property Act 1925 permitted service of certain notices by leaving them at the last known place of residence of the person to be served, but this did not apply to service on a periodic tenant of a notice to quit where the tenancy agreement made no express provision for service of notice to quit.
The tenant’s appeal succeeded. It was held that section 196 of the Act applied only to a provision in the contract and did not affect the mode of service, therefore the service of the notice failed.
Wadsworth London Borough Council however relied on the Interpretation Act 1978 which says that a document served by post is deemed effectively served by prepaying a posted letter in accordance with the Act’s provisions.
At the initial hearing the judge found for the landlord, Wadsworth London Borough Council, stating that the documents were effectively served according to section 7 of the Interpretation Act. The judge found that the Section 21 notice was valid in all respects and the landlord was entitled to possession.
The tenant’s appeal is now pending. Any change in the result may have important implications for landlords / agents who have failed to follow the correct service procedures. The case highlights the importance of following the service procedures to the letter, proof of service one way or another is important, as is having a relevant clause in the letting agreement.
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