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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Preparing a property to let – Gardens

In preparing your property to let, we recommend landlords tidy the gardens.


If the tenant is to be held responsible for maintaining the garden, make available the appropriate gardening tools and equipment. Any tools or equipment you do provide must be safe and in full working order and must be supplied with manufacturer’s instructions.


Few tenants are experienced gardeners so if the garden is particularly large, of an elaborate design, contains plants of high monetary or sentimental value or must be maintained to a particular standard we recommend you contract a gardener to maintain the garden on behalf of the tenant and add the cost to the rent.

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Do I need an Energy Performance Certificate (EPC) for my new home?

Yes – for all new homes completed on or after 6 April 2008, the builder is required to provide an EPC to the owner, with evidence shown to Building Control.

When the builder has finished building they will submit a notice to Building Control which includes an energy rating using SAP (Standard Assessment Procedure) to demonstrate the building complies with Building Regulations. By the same date on the notice, the builder must get an EPC from an accredited On Construction Domestic Energy Assessor (OCDEA) give the EPC to the owner of the building and tell Building Control that this has been done.

Building Control will not issue a final completion certificate until they are sure that this has been done.

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Online Tenancy Compliance Check – Health and Safety

Landlords are you compliant with all current health and safety legislation? Use this FREE online tool to check if you are:
Tenancy Compliance Checklist – Part 1 ~ Health and Safety
If you identify any errors or omissions, please let us know and we will get straight on to it.

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Fire safety legislation for landlords – Common Parts of Purpose Built Blocks of Flats

In this second part of the series on fire safety legislation for landlords I look at common parts of purpose built blocks of flats.


The first part of this series looked at fire safety legislation for dwellings (flats and houses) used for rented single household (family) occupation and can be found here.


Fire safety in common parts of purpose built blocks of flats is covered by the following:


Building Regulations 2010 Part B


See – Technical guidance for Part B is contained in Fire safety: Approved Document B.


Application – all dwellings where significant building work is carried out.


Housing Health & Safety Rating System (“HHSRS”)


Fire is included in the 29 hazards covered by the system introduced by Housing Act 2004.


See – Operating Guidance and Guidance for Landlords and Property Related Professionals. Further information on fire standards can be obtained in the LACORS Guidance on fire safety provisions for certain types of existing housing.


Application – all dwellings


The Regulatory Reform (Fire Safety) Order 2005


See – Fire safety in purpose-built blocks of flats.


See – LACORS guidance on fire safety provisions for certain type of existing housing for guidance on common parts of buildings containing flats.


Application – common parts (i.e. the shared areas including shared stairways, landings, kitchens, bathrooms etc.) of dwelling buildings containing in bedsits and flats both converted and purpose built.


If a flat is occupied as bedsits there are two sets of common parts within the building. The first is the shared access route to the flat front door and other is the shared areas within the flat e.g. hallway, shared kitchen, bathroom etc. Both areas would require risk rating.


Does not apply to shared houses let on a joint tenancy.


The guidance contained in this article also applies to converted flats that are not a section 257 HMO (House in Multiple Occupation)

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Fire safety legislation for landlords – Single Household (family) Occupation

In the aftermath of the Grenfell Tower tragedy there has been renewed interest in fire safety. In the coming months and years it seems likely that there will be changes to legislation but what does the law currently say about fire safety in rental property?


In the first of a series of articles I look at fire safety legislation for dwellings (flats and houses) used for rented single household (family) occupation.


Fire safety in this type of dwelling is covered by the following:


Building Regulations 2010 Part B


See – Technical guidance for Part B is contained in Fire safety: Approved Document B.


Application – all dwellings where significant building work is carried out.


Housing Health & Safety Rating System (“HHSRS”)


Fire is included in the 29 hazards covered by the system introduced by Housing Act 2004.


See – Operating Guidance and Guidance for Landlords and Property Related Professionals. Further information on fire standards can be obtained in the LACORS Guidance on fire safety provisions for certain types of existing housing.


Application – all dwellings


The Smoke and Carbon Monoxide Alarm (England) Regulations 2015


See – Smoke and carbon monoxide alarms: explanatory booklet for landlords.


Application – all rented dwellings


Licensing Condition


Basic fire safety conditions including provision of alarms have to be imposed if the premises requires a licence under Housing Act 2004 and Councils have discretion subject to appeal to impose additional fire requirements.


There are 3 types of licence.


• Mandatory Licence – applies to HMOs of 3 or more storeys and occupied by 5 or more persons who occupy as 2 or more households. Applies to all areas of England and Wales.


• Additional Licensing (HMO) – discretionary scheme which a Council may apply by Declaration which can apply to any HMO, other than those requiring Mandatory Licensing. Council has discretion on the extent of the area affected and the type of HMO e.g. could limit to HMOs with only 4 persons, or could apply to all other.


• Selective Licensing – discretionary scheme may apply by Council’s Declaration to any rented dwellings which are not a HMO – family/single households – and may cover all or part of the Councils district.


Application – any premises which requires a Licence under Housing Act 2004.

In the next part of this series I will look at fire safety regulations for common parts of purpose built flats here.

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How to deal with bats in a property

Unlike rodents, wasps and cluster flies, bats are not pests. As population numbers have fallen, all bats and their roosts are protected under The Wildlife and Countryside Act 1981 (as amended) and The Conservation of Habitats and Species Regulations 2010 (as amended). Under these pieces of legislation it is illegal to:


* deliberately capture (or take), injure or kill a bat;
* intentionally, recklessly or deliberately disturb a bat. In relation to the The Wildlife and Countryside Act 1981 (as amended) the offence applies whilst the species is occupying which it uses for shelter or protection; in relation to the Conservation of Habitats Regulations 2010 (as amended) it applies anywhere;
* damage or destroy the breeding or resting place (roost) of a bat;
* possess a bat (alive or dead), or any part of a bat;
* intentionally or recklessly obstruct access to a bat roost;
* sell (or offer for sale) or exchange bats (alive or dead), or parts of bats.


Under the law, a roost is any structure or place used by bats for shelter or protection. Because bats tend to re-use the same roosts year after year, the roost is protected whether or not bats are present. In this context ‘damage’ could include treatment with chemicals found in wood preservatives.


For more information contact the Bat Conservation Trust here

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Can an agent withhold part payment of 6 months rent in advance?

Yes – If the terms of the agency/client agreement allow the agent to retain certain monies received on behalf of the principal (landlord) it is acceptable for the agent to do so consistent with the terms of the agency/client agreement.


If the agency/client agreement does not allow the agent to withhold rent paid in advance then the agent should not do so….


The agency agreement (the contract) is governed by a fiduciary duty which the agent owes to the landlord. A fiduciary duty is a very stringent duty and Bristol and West Building Society v Mothew [1996] EWCA Civ 533 is a leading English fiduciary law that is globally cited for its definition of a fiduciary. In the landmark case Lord Milllett said a fiduciary is someone who is undertaken to act on behalf of another the circumstances of which give rise to a relationship of trust and confidence. As the fiduciary, the agent has the highest duty of care, higher than any contractual duty, because it is a fiduciary duty. The agent must be loyal to the principal, not put his own interest first and not profit from his fiduciary position unless the principal consents. Breach of a fiduciary duty is considered a fundamental breach and would allow the landlord to terminate the contract without notice. Specific examples:


* Agent must not delegate from his office – the agent cannot get someone else to do what he is contracted to do


* Agent cannot accept bribes – e.g. From prospective tenants


* Agent must not make a secret profit – e.g. From contractors employed to undertake work on behalf of the landlord by way of inflated invoices or paying commission to contractors


What does the fiduciary duty have to do with the payment of advance rent? I would suggest that as part of an agents ‘highest duty of care’ they should pay the landlord monies the agent receives on their behalf as soon as possible after the agent receives them minus any agreed deductions. Why would a landlord want to delay receiving money? Why would a landlord want to employ an agent to delay receiving money when they would otherwise receive the money much quicker without an agent?


Finally the fiduciary duty covers secret profits – if an agent withholds the landlords money and and it earns interest, they should pass this on to or declare it to the landlord otherwise it becomes a secret profit and is a fundamental breach of contract.

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Landlords should beware of cannabis farms

The extraordinary story of former Bath Tory councillor Donal Hassett who used false names, references and cover stories to rent homes to create a network of cannabis farms is a reminder of the problem this can be for landlords. Read the full story here


Cannabis farms in rented accommodation have been a problem for landlords for several years. Criminals spread farms around multiple locations to ensure that production continues even when one farm is discovered and closed. It is this need for multiple locations which leads the criminals to rented or squatted property.


For landlords, the discovery of a cannabis farm can be devastating and frightening. Under S.8 of the Misuse of Drugs Act 1971 a landlord (or anyone managing the property) can receive a maximum of 14 years in prison and/or a fine if they knowingly permit the production of controlled drugs to take place in rented accommodation. Arguably, “knowingly permit” could include turning a blind eye to the production of cannabis to ensure that their rental income continues. A further complication for landlords is that they could then find any rental income received seized under the Proceeds of Crime Act.


Landlords and their agents should therefore take steps to minimise the risk of cannabis cultivation in rented accommodation. Some signs to watch out for include:


• Tenant’s paying a large amount of rent up front;
• Tenant’s refusing or making excuses to prevent regular inspections or restricting access to parts of the property during inspections


Landlords should always carry out regular inspections or instruct their agent to and should look out for:


• Strange smells;
• Excessive heat;
• Blacked out or sealed windows;
• New ventilation units;
• Signs of meter tampering.


If there is a suspicion that cannabis is being grown at the property landlords should not address the matter directly with their tenant but should report it to the police. The landlord is then advised to serve the tenant with a Section 8 notice.


If the police discover a cannabis farm they will attempt to arrest the tenant and the landlord will need to co-operate with any investigation. Unfortunately, while removing the cannabis plants from the property the police will often leave behind the pots, soil, heat apparatus and any other paraphernalia connected to the cultivation of the cannabis. This can leave the landlord with a substantial clean-up bill and a lengthy delay prior to gaining possession.


Despite the tenant’s conduct, landlords cannot simply take back possession they will need to wait for a county court order for possession upon the expiry of the Section 8 notice. Where all the tenants have been arrested, and are not to be released on bail then landlords may be able to treat the property as abandoned however, prior to taking any steps in this respect legal advice should be sought.

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Why the Homelessness Reduction Act is good news for landlords

The Homelessness Reduction Bill has received Royal Assent and become an Act of Parliament. The Act places a new duty on Local Authorities to help prevent the homelessness of all families and single people, regardless of priority need, who are eligible for assistance and threatened with homelessness.


Positive News for Landlords


Until now a common problem for landlords was when a section 21 notice was served, the tenant went to the Local Authority with the notice and the tenant was told that they must wait for a court order and possibly bailiffs before they would be deemed to be homeless and therefore eligible for assistance.The Homeless Reduction Act prevents Local Authorities issuing this advice.


The Homeless Reduction Act amends the Housing Act 1996 adding a new definition of threatened with homelessness:


“(5) A person is also threatened with homelessness if—
(a) a valid notice has been given to the person under section 21 of the Housing Act 1988 (orders for possession on expiry or termination of assured shorthold tenancy) in respect of the only accommodation the person has that is available for the person’s occupation, and
(b) that notice will expire within 56 days.”


Two possible pitfalls to be aware of:


1. The duty only arises if a valid section 21 has been given – landlords need to ensure any section 21 notice they serve is definitely valid.


2. Local Authorities have struggled making decisions on the validity of section 21 notices even before this Act – Local Authorities commonly try to find reasons why a section 21 notice is not valid and no doubt given the fact that some courts struggle with this, this problem will persist.

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