Service of Notices
Serving notices correctly is a natural hazard of the 'snakes and ladders' of letting. Although less complicated and less fraught with pitfalls now that the Housing Act 1996 has done away with the original Section 20 'Notice of Assured Shorthold Tenancy', landlords still need to take care when serving the statutory notices required by the Housing Act 1988.The 1988 Act 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.
In the beginning
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.
Ordinary post
Common law
Common law only requires that the notice is received by the tenant, his/her spouse, or servant. If the tenant lives at the premises to which the notice relates, service can be effected by putting it through the letter box (or affixing it to the front of the door if there is no letter box, or it has been sealed). The court will obviously infer that the notice was received because the tenant lives there.
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. Being statutory, the statute must be strictly complied with. This is where the problems starts
The Atwell case
A recent example where this occurred was Wandsworth LBC v Atwell, (1995). Here, it was common cause that 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. Service could only be effective if section 196(5) of the Law of Property Act 1925 was complied with in every respect. Section 196(5) of the Law of Property Act states: "Any notice required or authorised by this Act is to be served ....."
The lease was silent as to service of notices. Therefore there was no requirement in the lease to serve a notice to quit. A fortiori, 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.
Although the County Court Judge had applied sound common sense in saying that the "local authority took all steps which were available ... to give that notice to the tenant .... ", that was not the law. Was it not Mr Bumble who said "the law is an ass" ?
Judge Glidewell's advice
"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.
(ii) prove the terms of the agreement in any action for possession following service of such a notice."
Landlords are obviously advised 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.
It must be remembered that in many possession cases, the tenant does not attend court and cannot be asked if he received the notice. Landlords and their agents will also be aware that some tenants appear to suffer collective amnesia about the receipt of notice, while others are complete strangers to the truth.This analysis now establishes that statutory service may be by registered or recorded delivery post provided the letter has not been returned to the sender. Ordinary post raises a presumption of delivery in the normal course of events, but is not sufficient to comply with the requirements of section 196. In any event, the presumption is not very strong and may be rebutted on fairly flimsy evidence.
There are some situations where the court has the discretion to dispense with the requirement for service of the notice. But care must be taken since, being a discretionary power, this possibility cannot be relied upon. It also only applies in a very limited number of situations.
Minay v Sentengo
In Minay v Sentengo, (1983), the agents posted a notice to the tenant, presumably by ordinary mail. It did not arrive. As there was no evidence of service, the court exercised its discretion to dispense with the notice because it was "just and equitable" to do so. The landlord believed his agent had served the notice and as the tenant had persistently delayed paying rent, the Court of Appeal dismissed the appeal thus allowing the original decision granting possession to the landlord.This is an unusual case and could in y view, only be relied upon in identical, or nearly identical circumstances.
It should also be noted that the court cannot dispense with the section 8 notice where the mandatory ground 8 (substantial rent arrears) is being relied upon. This is because, rightly or wrongly, ground 8 clearly contemplates the recalcitrant tenant paying the arrears and frustrating the landlord's attempts to obtain possession. If, by the date of the hearing, the tenant does not pay the arrears, or enough of the arrears to bring them below two months rent, then the mandatory ground will fall away. Hence landlords should include Grounds 10 and 11 as alternatives in the section 8 notice.
Registered or Recorded Delivery ?
When using postal service for legal notices, best advice is for the landlord or agent to use registered post although this is more expensive.The simple explanation is that registered is quicker.
REGISTERED POST:
Registered post is the more expensive of the two methods. Post is tracked each step of the way and is guaranteed for next day delivery. A signature is required at the delivery point. Where the recipient refuses delivery the item will be returned to sender the same day to be received the next day. It is a requirement of registered post that the all sender's details are included.
RECORDED DELIVERY:
Recorded delivery post takes the same speed as normal 1st or 2nd class delivery and similar to registered post, a signature is required at the delivery point. If delivery is refused post will be returned to sender within four to five days, provided that a return address is given on the envelope.
Where the address is not provided, the envelope will be returned to the post office from where it originally was sent. There, it will be opened and returned to sender, usually taking up to a couple of weeks to reach the sender.