The Court of Appeal (CoA) clarifies the rules on the service of ‘notices’ under Section 7 of the Interpretation Act 1978.
Background:
Mr. and Mrs. Khan are the registered leasehold owners of a flat let under an assured shorthold tenancy (AST) to Mrs. D’Aubigny. Mrs. D’Aubigny’s husband sold the flat to the Khans who let it back to him. She started proceedings under Section 37 of the Matrimonial Causes Act 1973 against her husband and the Khans which resulted in an order requiring the Khans to grant Mrs. D’Aubigny an AST until 31 January 2020. Clause 12.2 provided that, if the Khans allowed Mrs D’Aubigny to remain in the flat after the expiry of the term, a statutory periodic tenancy would arise under s.5(2) of the Housing Act (HA) 1988 on a weekly basis.
The Khans relied on a notice under Section 21 of the HA 1988, served on 17 March 2020, to regain possession. Such notice will not be valid if the landlords are in breach of various statutory requirements of certain documents such as the Energy Performance Certificate (EPC), a Gas Safety Record (GSR), and a “how to rent” document. The Khans noted that their solicitor had posted those documents and Mrs. D’Aubigny’s testimony was that she had not received them.
In the first instance, the Judge ruled that the documents had been duly served and granted possession. The decision was upheld on appeal. Mrs. D’Aubigny then appealed to the CoA.
Decision:
The CoA dismissed the appeal, noting that the presumption of service in Section 7 of the Interpretation Act 1978 is not engaged unless the statute expressly refers to the service of a document by post. However, it is not enough that service by post is a permissible means of serving the document in question. As the Judge noted, “It does not matter whether the word ‘serve’ is used or some other expression such as give or send or anything else to like effect; but the statutory provision must, in my judgement, refer to serving (or giving, sending, etc.) a document by post.” Consequently, the Act does not apply to Section 21 notices.
The Court ruled that a clause referring to the service of notices could encompass other legally required tenancy documents and that the EPC or GSR was notice within the meaning of the tenancy agreement. The Judge concluded, “The concept of a notice therefore does not depend on the word itself being used. I do not intend to attempt to give a comprehensive definition because this is always a difficult and risky thing to do; but it seems to me that, in general, a notice is simply something that notifies the recipient of something.”
Finally, the Court upheld the common law presumption that properly addressed letters are deemed to have been received unless the recipient can prove otherwise.
Implications:
This decision affirms that landlords can continue to send their notices through the post for the time being. It also underscores the importance of a well-drafted tenancy agreement, one which provides for the service of notices via post. It is also crucial in that it allows landlords to send documents that might be required by any potential changes in the law, such as the passage of the Renters’ Rights Bill 2025, to avoid incurring potential fines.
There is also a rebuttable presumption of service under common law. However, the context or credibility of the witness might impact such a presumption which thus depends on the Court’s interpretation.