Are You Being Served?

Landlords and their agents need to be familiar with notices.  The various housing statutes require certain notices to be served on tenants before possession actions can be taken, or to give notice of an increase in rent, or change to the terms of a tenancy.  In this article, we briefly look at the procedure rules for the service of notices and some relevant recent case law.

The  Housing Act 1988 requires that, before a landlord may start to recover possession of a property, he must serve on his tenant a notice stating that he requires possession of the dwelling-house, providing the correct information and within the correct timescales as stipulated by the Act.  This notice must now be in writing.
Equally, the landlord should give all tenants notice of proceedings for possession according to the statutory timescales if s/he wishes to follow the procedure for taking possession under section 8 of the Act.

In both cases, the classic dilemma for the landlord is how the notice should be best served both legally and in practice.   Personal service is expensive in travel and time and the tenant may be away from the property.  Yet, if the landlord serves by registered post, there is a risk that the notice will not be accepted by the tenant and returned. 

Whenever the landlord is required to give a notice to his tenant, the landlord (or agent) needs to ensure that the notice reaches the tenant, or is delivered in such a way that it can be assumed that it will come to his attention.  This process is called 'service'; and it is important that notices are validly served.
Incorrectly served notices can alter the nature of the tenancy or mean that rent arrears cannot be collected.  In possession cases, it can easily lead to dismissal of the landlord's claim and the loss of many months' rent whilst notices are re-served and the case is reheard.

Example:  Late Notice

The landlord serves a notice on his tenant under section 21.  The tenancy is due to run until July 1st  (the last day of the tenancy) so the landlord dates and posts his notice on April 30th intending that the tenant receives the required two months' notice.
Result:  The notice is invalid.  By the time the tenant is deemed to have received the notice in the ordinary course of the post, two days later, the tenant will not have received the full two months' notice required under the Act.

Personal service

The traditional and fail-safe way of serving notices is personal service whereby the notice is physically given to the tenant in person or left at the tenant's address.  Requesting the tenant to sign a copy of the notice as proof of receipt provides additional evidence that the notice has been served, but is not a legal requirement.  If the tenant denied receiving the notice, it would be sufficient for the person serving the notice to appear before the court to confirm the date and place when the notice was served. The landlord does not have to serve the document himself; it is sufficient that the notice is served by his agent or solicitor.  However, a document may not be served by a person under 16 years of age.  If the recipient refuses to accept the notice, then it is sufficient to inform him/her of the nature of the document and throw it to the floor in his/her presence.  Also, where there is personal service, no document should be served on a Sunday, Good Friday, or Christmas Day except in the case of urgency with permission of the Court.
Service can also be effected by putting the notice through the letterbox (or affixing it to the front of the door if there is no letterbox, or it has been sealed).  The court will normally infer that the notice was received because the tenant lives there.

Ordinary post

Sending the notice by ordinary first class post might operate satisfactorily in the majority of cases; but the problem with service by ordinary post is that it would not be conclusive service because it does not comply with the statutory requirements, and the tenant can easily deny ever having received the notice.  The landlord then arrives at court after waiting many months for the case to be heard on the court's busy calendar.  The tenant claims that he never received the required notice and the landlord, unable to provide proof of service, will begin to sense that slippery feeling as his possession case crumbles beneath him.

Notices can be validly served by fax or by email but both methods again suffer from the fact that currently, the law does not recognise either to be conclusive service. Inevitably, as the law develops, electronic methods of service will become more widely accepted in future.

Common law

Common law only requires that the notice is received by the tenant, his/her spouse, or servant. If the notice cannot be served to any of the above in person, then service must be effected by post, or by leaving it at the address in the various ways described above. It is in those cases where the court may not be prepared to draw the necessary inference of service on the tenant that the statutory presumption of service is required.

Law of Property Act

The solution to this legal minefield arrived in the form of the Law of Property Act 1925. Clearly the common law situation was unsatisfactory. Landlords needed to be able to serve a notice on a tenant, and know with some certainty that it had been sufficiently served in accordance with the requirements of the law without the presumption of service being open to denial on some fairly flimsy evidence from the tenant ("must've been eaten by the dog, Your Honour" being a common claim).

Since 1 January, 1927, when section 196 of the Law of Property Act 1925 came into operation, it has been standard practice to effect conclusive service on a tenant to serve either by registered post, or leaving the notice for possession, or notice to quit, at the tenant's last known address.

When the Recorded Delivery Act 1962 was added to the armoury, service by recorded delivery was also sufficient proof. Being statutory, the statute must be strictly complied with. This is where the problems starts.

Recent cases

In Wandsworth LBC v Atwell, (1995). the tenant had worked overseas from 1990. He had left his half-brother to live at the house as caretaker and to pay the rent. Because the tenant was not living at the house, the Borough Council sought to bring the weekly tenancy to an end and left a notice to quit at the house which complied with section 5 of the Protection from Eviction Act 1977, by giving more than four weeks' notice.

In the Atwell case, the lease made no express provision for the manner in which a notice to quit, or any other notice, might be served. Service at common law could not be claimed because the tenant was living in the United States working as a musician. His half-brother was not a servant, notwithstanding he was the caretaker.
Because the lease was silent as to service of notices, section 196(5) of the Law of Property Act 1925 did not apply. The judge was forced to conclude that the notice had not been validly served on the tenant and the possession case dismissed.

Following this case, the judge, Lord Justice Glidewell commented:

"The moral for landlords is clear. If they wish to render valid and effective service of a notice to quit by leaving it at the premises the subject of the lease, without proving it came to the attention of the lessee, they must:
(i) make provision for such a method of service in the tenancy agreement.br /> (ii) prove the terms of the agreement in any action for possession following service of such a notice."

Non receipt of notice

In WX Investments v Begg (2002), the Court of Appeal was invited to examine the effect of s.196 of the Law of Property Act. The Court held that despite the recipient refusing to accept a notice for several weeks until it became invalid, the notice was deemed to be delivered 2 days later according to the "ordinary course of the post". This presumption could not be altered by the whims of the addressee.

Practical impact

Personal service is clearly the least problematic route for service of notices and may be the required route if a posted notice is returned as 'undelivered'.
Where a landlord opts to serve notices by post, then s/he must allow sufficient time before service and expiry of the notice in order to allow for postal delays. When you serve the notice by first class or registered post, then it is deemed to have been served on the second day after it was posted. Registered post is preferred over recorded delivery because it is quicker and undeliverable mail will be more promptly returned to the addressee (for a more detailed explanation - see Q&A section on page 29).

Finally, it is important to effect conclusive service and thus discourage tenants from simply denying receipt of notices. Landlords and their agents are encouraged to follow the advice given by Lord Justice Glidewell by specifically including a condition in their standard tenancy agreement relating to the service of any notices. This clause might state that any notice relating to the agreement may be sufficiently served if served in accordance with section 196 of the Law of Property Act 1925, or some equivalent wording.

Confusing, isn't it! But it really is important to get the service of notices right.