Landlords guide to serving notices – Part 2 – deemed date and time 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 my previous article (here) I considered the method of service and in this article I look at the deemed date and time of service. The deemed date and time of service is the point at which the recipient can be assumed to have received the notice regardless of whether or not they have actually received it. The deemed date and time of service is most important for time sensitive notices which have to be served by a particular date.


As with the previous article I consider contractual and statutory provisions for deemed date and time of service. If you don’t have time to read the full article skip to the Summary section.


Contractual Provisions


To make the notice provisions workable it is common to include provisions deeming the date and time a notice is received if it is sent by a particular method. However, it is important to ensure that provisions must be appropriate and realistic: for example, they should not deem receipt earlier than the notice could in reality be expected to arrive.


The parties will generally agree that notices cannot be deemed to be served on a non business day. This means that care needs to be taken where a notice is required to be given no later than a date which is a Saturday, Sunday or Bank Holiday: the notice must be served in time to ensure that it is deemed delivered no later than the last business day before this.


For notices sent via post care needs to be taken as to whether the notice being returned undelivered will prevent the operation of the deemed service(1). If the parties intend that a notice should be deemed served even where it is returned undelivered it is advisable to include wording such as “…deemed served on the third working day after posting whether it is received or not” should be used.


Example notice provisions deeming service


If a notice has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:

(i) if delivered personally, at the time of delivery; or

(iii) if sent by commercial courier, on the date and at the time of signature of the courier’s delivery receipt; or

(iii) if sent by pre-paid first-class post or Royal Mail Special Delivery or Signed For (registered letter or recorded delivery) [9.00 am] on the [second] Business Day after posting whether it is received or not, provided that it is not returned undelivered; or

(iv) if sent by email, at the time of sending whether it is received or not, provided that the confirmatory copy is not returned undelivered.


Statutory Provisions


Law of Property Act 1925, section 196


…notice …service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.


Deemed served at the time the letter would ordinarily be delivered means that service is deemed to take place on a presumed date, when the notice would have been delivered in the ordinary course of business. This is the first day on which the postman attempts to deliver the notice, regardless of whether anyone is available to receive it(2).


Even if the letter is never received service is still presumed to have taken place, provided that the notice is not returned undelivered(3).


Where a notice is sent by post it is sufficient that it is delivered during the last day on which the notice must be given, even though outside of business hours(4).


The Landlord and Tenant Act 1927, section 23 does not cover deemed date and time of service and as such, we have to rely on case law for guidance on this and the most recent case law takes a generous approach from the perspective of the giver of the notice. Where the notice is sent by Special or Recorded Delivery, the date of service is the date on which the notice is entrusted to postal service(5).. It doesn’t matter if the notice is not, in fact, received or even if it is returned undelivered; service will still be deemed to have occurred(6).


Notice is not the same as knowledge


In Blunden v. Frogmore Investments Ltd [2002] the tenant disputed the validity of the notice. The tenant gave evidence that he had been away from home at the time, and, on his return had found a communication from the post office that it held a recorded delivery item. However, by the time the tenant became aware of this the recorded delivery items had been returned to the landlord’s solicitor as undelivered. The tenant also stated that he had not seen the notice on the premises because he was forbidden to go near them due to the dangerous nature of the buildings. The judge dismissed the tenant’s claim on the ground that there had been good service of the notices. The tenant appealed.


The Court of Appeal unanimously agreed that the landlord had validly served the notices pursuant to section 23 of the Landlord and Tenant Act 1927. They held that section 23 of the 1927 Act permits service by recorded delivery to the tenant’s last-known place of abode, whether or not it is returned by the Post Office.


Robert Walker LJ, in a passage he said underscores the rationale behind this judgement “Notice is not the same as knowledge. But the evident purpose of requiring notice to be given to a particular person is that the contents of the notice should be communicated to, and become known by, that person. Nevertheless, there is no doubt that both statutory and contractual provisions may lead to the position that a valid notice has been given, even though the intended recipient does not know of the notice (and is not at fault in not knowing about it)…. the object of section 23 of the 1927 Act, as incorporated into the 1954 Act is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, section 23 (1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it”.


Interpretation Act 1978, section 7


Where an Act authorises or requires any document to be served by post … 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.


Summary


* Statute has provision for notices sent by post to be deemed served at the time at which the letter would be delivered in the ordinary course of post.
* The most recent case law provides that where the notice is sent by Royal Mail Special Delivery or Signed For (registered letter or recorded delivery), the date of service is the date on which the notice is entrusted to postal service. It doesn’t matter if the notice is not, in fact, received or even if it is returned undelivered; service will still be deemed to have occurred.
* Make sure the Tenancy Agreement includes provisions deeming the date and time a notice is received if it is sent by a particular method.


References


1 Re Thundercrest Ltd [1995] 1 BCLC 117: here the company had an article which provided that where a notice was sent by post, service was deemed to have been effected by properly addressing, pre-paying and posting the notice. However, it was held that the purpose of the provision was to deal with the case where there was uncertainty as to whether a document had been delivered and the article could not be relied upon where it was established that the document had not been delivered.
2 WX Investments Ltd v Begg [2002] EXHC 925 (Ch)
3 R v Westminster Union Assessment Committee, ex p Woodward & Sons [1917] 1 KB 832
4 Papillion v Bernton (1860) 5 H&N 518
5 Beanby Estates v Egg Stores (Stamford Hill) [2003] EWHC 1252; CA Webber (Transport) Ltd v Railtrack plc [2003] EWCA Civ 1167
6 Blunden v Frogmore Investments Ltd [2002] EWCA Civ 573 [2003]


Further Reading


Service of notices by Rebecca Ebdon

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