I had someone email me recently. He told me
A landlord recently posted a Section 21, first class mail with certificate of Posting ( as allowed for in the AST) to a tenant of one of a few flats within a building.
The tenant was represented at court and his solicitor managed to successfully are that the tenant hadn’t received any notice, and that as mail would have been delivered only to the front door of the building, not specifically through his own flat door – The notice wasn’t served. Judge dismissed case.
I have to say that I agree with the Judge.
Blunden v. Frogmore 
My correspondent referred to the case of Blunden v Frogmore 2002 where LJ Robert Walker said ‘Notice is not the same as Knowledge’…. Making the point that It is possible for a valid notice to be given by the landlord even though the intended recipient doesn’t know of it.
Blunden v. Frogmore was about commercial premises – a shop in the Corn Exchange in Manchester – which had been badly damaged by an IRA bomb. The lease of the premises provided that in the event of the premises being wholly or substantially unfit for occupation, the landlord could serve notice to quit.
In this case, the notice was served by recorded delivery and by affixing it to the premises – neither of which the tenant received.
Other cases have come to similar decisions, for example perhaps one of my favourite cases of all time, Lord Newborough v Jones in 1974 where the landlord slid the notice under the door of the property where it went under the lino and was therefore not noticed by the tenant.
The Court of Appeal held that it had been validly served as the landlord needs only serve the notice by a means which a reasonable person minded to bring the document to the attention of the person to be served would adopt.
However in neither of these cases was the notice served by post.
The problem with posting
If the letter is actually left at a property, then even if, as in the two cases above, the tenant did not actually receive it, at least it reached the property. The landlord has done all he can to ensure the tenant gets it.
So far as recorded delivery is concerned, there is there is a record of what happened. The landlord is able to download a signature from the internet proving receipt.
If the tenant is not at the property at the time of delivery – a card is left telling them about it, giving them an opportunity to go and collect it. Of course in many cases, the tenant will completely ignore this. However, you can at least prove that the document reached the property and it is not the landlord’s fault that the tenant didn’t receive it.
Contrast this with the ordinary post. Here, even if there is a certificate of posting, there is nothing to show that that the letter was actually delivered. It is a fact that post items do genuinely go astray sometimes. Not as often as tenants would have us believe, but it does happen.
So in my view, in the absence of any other proof from the tenant, a Judge is more likely than not to accept the tenant’s evidence that he never got it.
Under the law of evidence ‘he who alleges must prove’. If the Judge is faced with a tenant saying that he never received something and the landlord’s evidence only shows that the item was posted by ordinary post, it is arguable that the landlord has not done enough to satisfy the Judge that – on the balance of probabilities (the standard or proof for civil claims) – the item was properly served.
Section 196 of the Law of Property Act 1925
I discussed this here. Section 196 is often incorporated into tenancy agreements and leases and provides (where it is used) how documents can be served. Service by recorded delivery is included, but s196 provides that service will not be deemed to have taken place if the item is not returned undelivered, and goes on to say that the item will ‘be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.’
Service by recorded delivery is included, but s196 provides that service will not be deemed to have taken place if the item is not returned undelivered, and goes on to say that the item will ‘be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.’
Of course now (unlike in 1925), if a recorded delivery item is delivered the landlord will now be able to download a copy of the signature showing receipt – which will be excellent proof of the actual date of service.
What does your tenancy agreement say?
Before serving any notice, you need to check your tenancy agreement to see what (if anything) it says.
Many tenancy agreements do state that a notice will be deemed served if served in an approved manner. These are generally:
- Leaving it at the property
- Sending it by recorded delivery and
- Sending it by first class post
Leaving it at the property is what happened in Blunden v. Frogmore and Lord Newborough v Jones. A Judge will generally accept that an item was properly served if it was left at the property. Even if the tenant did not know about it, he cannot deny that it was actually delivered.
With recorded delivery we can also show that even if the item was not actually delivered, this was not the fault of the landlord. The tenant is given an opportunity to receive it. It was not the landlord’s fault if they fail to take advantage of this.
However first class post does not have these certainties. Personally I think there is scope for saying that a clause providing for an item to be deemed served if it has been sent by post is unfair under the Unfair Terms rules (now part of the Consumer Rights Act 2015). Unlike with the other two methods, the landlord is unable to show, by way of evidence, that the item ever reached the property.
What about flats?
In the email I quoted at the start of this post, the main reason the Judge refused to make the order was that even if the item had been delivered to the building, it would not have reached the tenants actual property. It would have been pushed through the letter box of the front door of the building rather than the tenants own front door.
This is another way the item could have been mislaid – it could have been picked up by mistake by someone in another flat, thrown out with the rubbish or maybe eaten by someone’s dog. Again you cannot prove that it reached the tenant.
It’s better if there is are lockable post boxes for the flats as at least there is less chance that it could have gone astray.
However, if you are delivering a notice to a tenant and they do not come to the door, in my view it is best to stick it across the lock (so they will have to remove it go get in) or shove it under the door. Or, ideally, both. And also, if there are lockable post boxes, put it there too.
If you are serving a notice yourself, it is best nowadays to have someone independent with you who can witness the service, just in case the tenant claims that you are lying (it happens).
The witness needs to be independent – what does that mean? It means it needs to be someone the Judge will believe – someone who is unlikely to commit perjury for you, the landlord. So forget about a relative or friend. An employee is probably all right, although best to have someone completely independent such as a policeman, Council officer or a neighbour.
It means it needs to be someone the Judge will believe – someone who is unlikely to commit perjury for you, the landlord. So forget about a relative or friend. An employee is probably all right, although best to have someone completely independent such as a policeman, Council officer or a neighbour.
If the tenant alleges that the document was not served it is possible that they may need to give evidence at court so don’t use your temporary assistant who is due to return to Australia next week!
So what is my advice?
If you are looking to serve a notice which you are going to base a claim for possession on, it is an important document.
Possession proceedings take a long time – generally the time is in the order of six months. If your tenant is not paying rent, then you can suffer serious financial losses if there is any delay – such as the Judge rejecting your case for non service of the notice. It is therefore worth the effort to make sure that nothing goes wrong.
My advice has always been to landlords that you should not start proceedings for possession unless you are able to prove that the notice has been served on the tenant. I advise these methods of service:
- Personal service on the tenant witnessed by an independent witness (see also if you can get the tenant to sign and date a copy to show receipt)
- Leaving the notice at the property (ie through the letter box, under the door and/or stuck across the lock), witnessed by an independent witness
- Service by recorded delivery/registered post where you are able to show that the items was delivered and not returned to you (so this method is a bit of a gamble as if the item is returned you will need to re-serve which will waste time)
- Service by an accredited process server (if 1 and 2 are not possible)
If these methods are used, your tenant will not be able to deny service. With any other method of service, it will be less certain. For example
- If the item is sent by post a Judge may accept the tenants evidence that he never received the notice, and find that a deemed service clause in the tenancy agreement is unfair
- If the item is sent by email, the Judge may refuse to accept this unless you are able to show both that the tenant consented to served in this manner and that the tenant actually received the notice (and this will usually need to be by way of an actual email confirming it rather than a ‘read receipt’ or tracking message).
If personal service by you is impossible, for example because the property is too far away, and the tenant refuses to accept recorded delivery items, you can always use a process server. They will provide a certificate of service as part of their service to you and if they are properly accredited the Judge is unlikely to reject their evidence.
No doubt there are many cases where landlords have successfully obtained a possession order where the notice was served by post. Or if the Judge rejects your claim, you may succeed on appeal.
But do you want to risk it? Do you want to risk having to appeal? With all the extra bother and wasted time that entails? No, of course you don’t.
So it it is best to take a bit of care now and avoid any possibility of that happening.
What about the email I referred to at the start of this post? My correspondent asked if he should appeal. Should he do that?
My view is that if the notice was just served by post his chances on appeal are slim. He should accept the situation and re-serve the notice properly. Ie by one of the following methods:
- Handing it personally to the tenant witnessed by an independent witness
- Leaving it at the property witnessed by an independent witness or
- Sending it by recorded delivery – on the understanding that if it is returned as undelivered it will need to be re-served to be sure of success, or
- Using an accredited professional process server
My preference though is for one of the first two options. They are the safest. And check that your tenancy agreement has a decent service of notices clause.