The recent swathes of strikes across the UK did not bypass Royal Mail who have undertook a series of industrial action days in December. In this article we shed some light on the issue of properly serving notices in a landlord and tenant context, with particular focus on service during the strikes.
Why do I need to ensure that a notice is properly served, and what are the rules of service?
If there is a dispute between a Landlord and a Tenant, courts will almost always look at whether a notice to quit or notice of seeking possession has been properly served.
Rules of service will often be agreed between the parties, so the tenancy agreement is typically the starting point when establishing the rules for service in a particular case. For example, some tenancy agreements will prevent parties from serving documentation electronically. If the tenancy agreement/contract is silent on methods of service, then service via first class post would typically be the most common method of service. That said, with the recent postal strikes, many people will be considering the use of alternative methods of service, particularly where they need to serve a document on another party urgently. Thankfully there is evidence to suggest that the judiciary are becoming more accepting of alternative methods of service. For instance, in the 2019 case of Gray v Hurley (concerning a divorce), the court did not challenge service by WhatsApp, although it must be noted that the circumstances of the case were rather specific as the court noted that the cost of locating and serving a party who was living in New Zealand was prohibitive.
If the other party is a business, care will also need to be taken to ensure that any documents/notices are sent to the registered business address, or a prescribed postal address if there is one. When sending documents/notices which are “care of” a third party, it will also be important to understand how the post at the specified address is being monitored – to ensure that service will be effective.
Returning to Landlord & Tenant disputes, although the Housing Act 1988 is silent on the issue of service, parties may sometimes refer to section 196 of the Law of Property Act 1925 in the contract. Section 196 provides, that notices will be deemed properly served on tenants if they are left at the subject property. Further, section 7 of the Interpretation Act 1978 may also apply, which provides:
“Where an Act authorises or requires any document to be served by post (…) unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter (…) 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 summary, the sender needs only to show that, on the balance of probabilities, notice has been properly sent. It is not necessary to present actual evidence that the addressee received the letter. However, it is equally important to appreciate that this is only a presumption – after all, the wording provides that this will stand unless the contrary is proved – so if there is evidence to show that the documents were not received by the other party, the presumption will not apply.
Even if there are disruptions to postal delivery, parties should endeavour to serve a notice on the other party by any means possible. Since country-wide postal strikes are quite infrequent, there is little case law to clarify the procedure which ought to be followed in such a circumstance. The Scottish case of Kodak Processing Companies Limited v Shoredale Limited (whilst limited to application in Scotland) could provide a useful steer moving forward. In that case, the court held that a landlord’s notice to terminate a lease in Scotland (amidst a Scottish postal strike) should have been sent by Royal Mail recorded delivery, whilst at the same time a second notice should also have been served on the tenant by some other means (for example, an email) clarifying that the original notice may arrive late. Whilst this ruling only applies in Scotland, it will be interesting to see whether this case influences the English judiciary in the future.
Parties in England and Wales should nevertheless continue to serve notices/documents on another party by any means possible, and should remember that they must be able to show, on the balance of probabilities, that the notice came to the other party’s attention. We have set out some practical tips below on how this might be achieved.
Practical tips for serving a notice
Anyone serving a notice should always be mindful of practical constraints that could arise during the course of service. As a rule of thumb, it is often advisable to send a notice by first class post with recorded delivery. That said, it should be borne in mind that if the intended recipient refuses to accept service of the document/notice then service will be ineffective.
Similarly, personal delivery (effected when documents are put through letterbox) can be problematic too! In Field v Del Vecchio the question put before the High Court was whether papers had been properly served on the defendant who was standing inside his flat and talking to the process server on the other side of the door. The court deemed this to be an effective service as the documents in question “could not have failed to come to the notice of the defendant (…) and there was no possibility of any other person coming along and taking the documents away from him”. However, if the property appears to be empty, it is advisable to take pictures and/or videos evidencing that delivery to that particular address has been effected.
Going back to the issue of postal strikes, if you intend to use Royal Mail’s service we suggest that you always check their website for any updates on industrial action as well as the affected dates.
Parties should also consider the timing of service. Strict deadlines for service are commonplace during Court proceedings and so it is always a good idea to allow plenty of time to prepare documents and serve them on the other party. Additionally, parties must factor in weekends and bank holidays when calculating service and/or notice periods. For example, parties should consider whether the relevant period is set out in “business days”.
After a notice has been served
If court proceedings are pending or contemplated, the party effecting service will also need to sign a document to confirm the date on which the notice was served and the method of service used. This needs to be completed by the person who has served the notice and care must be given when filling it out because incomplete or incorrect information on the form could lead to serious legal ramifications.
Conclusion
The issue of service is a very important factor to consider when contemplating court proceedings. The recent judgment in the case of O G Thomas Amaethyddiath v Turner & Ors serves as a stark reminder that landlords must be wary of any defects in notices they have served. In this case, Mr Thomas, tenant of an agricultural holding assigned the tenancy to a company. His landlord was not aware of the existence of the company, while Mr Thomas was both the director and shareholder and his home address was the company’s registered address. The landlord subsequently served a notice to quit on Mr Thomas. The Court of Appeal held that a notice to quit served on incorrect recipient does not meet the requisite formal conditions and thus the notice was deemed to be invalid.
As this case demonstrates parties must ensure that all the formalities have been complied with if their notice is to be effective. Failure to serve the notice properly could result in the claim being dismissed by the court, which could result in increased legal costs and a new claim having to be brought. The Property Litigation team at Buckles Solicitors LLP regularly advises clients in the housing sector and can help you with all housing-related matters. If you need advice on your obligations or if you are thinking of commencing court proceedings, please contact us for further advice.
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