Landlords guide to serving notices – Part 1 – method of service

There are several elements that affect the validity of a notice – the form, the content, the method of service and the deemed date and time of service.


In this article I consider contractual and statutory provisions for method of service. If you don’t have time to read the full article skip to the Summary section.


Contractual Provisions


The method of service used to serve any notice should exactly accord with the relevant clause(s) in the Tenancy Agreement. The clauses within the Tenancy Agreement that cover how any notices should be served should be easy enough for someone with no legal knowledge to understand, otherwise they could be deemed unfair and therefore unenforceable.


The syntax of any contractual provision covering method of service will be similar to the following:


A notice given to a party under or in connection with this lease:


[shall] or [may] be:

(i) delivered personally; or

(ii) sent by commercial courier; or

(iii) sent by first-class post or recorded or special delivery; or

(iv) sent by e-Mail [provided that a confirmatory copy is delivered personally , sent by commercial courier or sent by first-class post or recorded or special delivery on the same day]


Mandatory or permissive provisions


It is a good idea to specify the acceptable methods of notice and also to be clear as to whether these methods are mandatory or permissive.


If the methods are mandatory they will be strictly applied and if they are not followed the notice will be invalid: if personal service is required and the notice is sent by post it will be invalid even if it is fact received.


If the methods are permissive, service by another method will not invalidate the notice, provided it is in fact received.


The use of the word “shall” makes these methods mandatory whereas “may” will make them permissive. Other wording can also be used which will achieve a similar effect so the provision should be read and followed carefully to ensure that the notice is not invalidated by sending it using the incorrect method.


Common methods of serving notice


Some of the common methods of giving notice include:


a) Personal delivery: this will include use of a courier or other agent to serve the notice, though these methods can be specified separately.


b) Post: this may include first class post, Special Delivery and Signed For. Special Delivery or Signed For are more preferable to first class post as they provide a record of receipt.


c) E-mail: though e-mail is popular, consideration needs to be given to possibility of non delivery of the notice sent in this way.


Statutory Provisions


Landlord and Tenant Act 1927, section 23


…notice …may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there …


Law of Property Act 1925, section 196


…notice …shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, …or …left …on the land or any house …comprised in the lease …


…notice …shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, …at the aforesaid place of abode or business, office …and if that letter is not returned …undelivered …


There has been plenty of case law that helps with the interpretation of these Acts.


Leaving a notice at a property includes:


* Handing the notice to someone at the property provided that there are reasonable grounds for supposing that the person will pass it on to the recipient if possible(1).


* Leaving it at the furthest place to which a member of the public can go(2).


* Fixing the notice onto the door of the property(3). This is the case even where the property has been so badly damaged that the intended recipient is unlikely to be able to access it, provided that the person giving the notice has acted in good faith. If the notice has been deliberately concealed this will not amount to good service(4).


* Pushing it under the door, even if it is not found for several months(5).


The last known place of abode is the last address you have for the person. It can be a residential or a business address. It is worth noting that where a solicitor has been advised of a change of address, the client may be deemed to have that knowledge regardless of whether or not it has actually been passed on(6).


A registered letter includes both a letter sent by Recorded Delivery(7) and a letter sent by Special Delivery(8). Since 1998, the Special Delivery service has been the only registered service offered by Royal Mail, after the old-style Registered Letter service was discontinued. Signed For is the brand name for the recorded delivery service offered by Royal Mail.


The prescribed methods of service under these statutory provisions are permissive rather than mandatory. This means that, provided the notice actually reaches the intended recipient, it is validly served even though one of the prescribed means of service have not been used(9). However, where a different method is used from those specified it will be necessary to prove that service has taken place. If the intended recipient can prove, on the balance of probabilities, that he did not receive the letter, the notice will not have been served.


Summary


* Statute has provision for notices to be served personally, left at the last known place of abode or sent by post using Royal Mail Special Delivery or Signed For services.
* Commercial courier, first class post and e-mail are acceptable methods of service though if using these methods it will be necessary to prove that service has taken place.
* Make sure the Tenancy Agreement includes provisions for method of service of notices and do what the Tenancy Agreement states when actually services notices.


References


1 Cannon Brewery Co Ltd v Signal Press Ltd (1928) 138 LT 384
2 Trustees of Henry Smith’s Charity v Kyriacou (1990) 22 HLR 66
3 Major v Ward (1847) 5 Hare 598; Cusack-Smith v Gold [1958] 2 All ER 361
4 Blunden v Frogmore Investments Ltd [2002] 29 EG 153
5 Lord Newborough v Jones [1975] Ch 90
6 Arundel Corporation v Khoker [2003] EWCA Civ 1784.
7 Recorded Delivery Service Act 1962, s1(1): any enactment which requires a document to be sent by registered post has effect as if it required or authorised it to be sent by registered post or the recorded delivery service.
8 Successor Postal Services Company Inland Letter Post Scheme 2001, Sch 2 (as amended): any reference to “Registered Post” must be taken as a reference to Special Delivery as this is the brand name used by the Post Office and is the same in all material particulars.
9 Galinski v McHugh (1988) 21 HLR 47


Further Reading


Service of notices by Rebecca Ebdon

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