The latest on serving Section 21 notices

In a recent case of Khan and another v D’Aubigny the Court of Appeal considered a decision made by Wandsworth County Court in which Dr Kameel Khan and his wife Mrs Julia Khan (the Khans) were the landlords of a flat which they let to Mrs Elena D’Aubigny (the tenant) under an AST.

The Khans served a S21 notice on the tenant and then applied for possession of the flat. For tenancies that started on or after 1 October 2015, a landlord cannot serve a valid section 21 notice if they have not given the tenant a copy of the current gas safety certificate and a valid energy performance certificate (EPC) together with the ‘How to Rent’ booklet before giving notice. The Khans said that their solicitor had posted copies of the documents to the tenant but the tenant said she had not received them and that the S21 was invalid.

The County Court had decided that the documents were properly served on the tenant relying on Section 7 of the Interpretation Act 1978; this says that ‘where an Act authorises or requires any document to be served by post then 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’. In other words, that posting the documents was sufficient to amount to proper service unless it can be proved otherwise.

The tenant appealed this decision and the Court of Appeal decided that the Interpretation Act only applies where an Act expressly authorises service by post; this is not relevant in relation to providing documents to a tenant prior to serving a S21 notice where the statutory provisions only require a landlord to serve or give the relevant documents to a tenant and says nothing about service by post.

However, and happily for the Khans, the Court did find that the tenancy agreement ‘saved the day’ because of a provision in it which said that notices ‘sent under or in connection with’ the tenancy agreement were deemed validly served if sent by first class post. The Khans were able to prove postage of the documents and the Court was satisfied that the various documents (EPC etc) fell within the scope of the word ‘notice’ and although not sent ‘under’ the tenancy agreement, they were sent ‘in connection’ with it.

The Court also considered the’ rebuttable common law presumption’ that a letter proved to be sent by first class post is received by the recipient. The County Court Judge had found on the balance of probabilities that the tenant had not rebutted the presumption and, therefore, all of the relevant documents were deemed served.

What are the implications of this case for landlords serving notices?

This is good news for landlords whose tenants try to defeat a section 21 notice by arguing non-receipt of Energy Performance Certificates and Gas Safety Records etc. If a tenancy agreement includes a provision deeming that all notices served ‘in connection with’ the tenancy are validly served if they are sent by first class post, a landlord need only prove postage. It is important that the deemed service clause is as widely drafted as possible, clearly stating that documents required by legislation to be served on tenants under or in connection with the tenancy agreement shall be deemed served if sent to the address by first class post.

Such clauses are also helpful for landlords if trying to prove service of other notices.

For expert legal advice on serving Section 21 notices or any landlord-tenant disputes, contact Johanne Spittle, Director of Litigation & Dispute Resolution at Ware & Kay on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email johanne.spittle@warekay.co.uk.