This is a question to the blog clinic ‘fast track’ service from Christian who is a tenant.
I have a couple of questions regarding the Law of property act 1925.
Regarding 196 section 3 if the landlord has agreed to use an overseas address for correspondence. I have this in an email with confirmation from the landlord. They then serve notice to the U.K. Is this acceptable or is there any legal precedent.
Regarding section 4 is registered mail a requirement or an option? If not sent via registered mail what are the consequences regarding payment of long term agreement?
Section 196 of the Law of Property Act 1925 sets out circumstances where a notice served on a landlord or a tenant will be deemed served without having to actually prove it was received.
Here is the wording of sub-sections 3 and 4, which are the sections referred to:
(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of Part 3 of the Postal Services Act 2011) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
A few words first about service of documents.
When the problem arises
The problem only arises if someone claims that they have not received something – document, a notice, a letter or whatever. So if it has been received and accepted and there is no dispute, that’s fine.
Section 196 is a way of ensuring that service of notices is effective. If it is used properly then documents served in accordance with it will be deemed served even if the other party never actually received them.
For example in Van Haarlam v.Kasner in 1992 a notice was held to be properly served even though the landlord knew the tenant was in prison.
Note by the way that s196 refers just to notices. It’s not referring to general correspondence, although a letter can sometimes constitute a notice.
Only in the United Kingdom
The section specifically refers to an address ‘in the United Kingdom’. I don’t think therefore that section 196 will or can apply if the notice is served on a party elsewhere.
That is not to say that documents relating to UK property can’t be served outside of the UK – just that if the other party denies receipt, proof of service cannot be deemed under s 196.
The person who served the document will have to prove service by some other way. This could include:
- Proof of delivery of a recorded or registered postal item
- Evidence of a process server (one prepared to go abroad!)
- Evidence from someone who witnessed service or maybe
- Some sort of admission from the party, for example, a letter where they refer to having received the document
Generally, though, it is expected that notices relating to a UK property will be served in the same country (for example in England & Wales). Bearing in mind that the UK courts don’t have a lot of control over what happens abroad.
And anyway if the property is a two bedroomed flat in, say, the Tottenham Court Road in London, why are notices regarding it being served in Geneva or Hong Kong (to pick two places at random)?
S196 does not always apply
Another point to note is that s196 does not always apply. The wording refers to “Any notice required or authorised by this Act”. However, it is fairly common for agreements to incorporate section 196 so it can be used to ensure that notices are deemed served – even if the notice or document is not one which is specifically served under the Law of Property Act 196.
I assume that your agreement refers to s196 and incorporates it into the agreement you are concerned with.
Can service be tied to service at a particular address?
It rather looks from your question though as if you are asking a slightly different question – asking whether a notice CAN be served in the UK (eg pursuant to s196) if it has been agreed that the notice will be served elsewhere – somewhere abroad according to your question.
Or can be agreed that a document or notice will ONLY be served in a specific manner or at a certain address? Can you say “although I have received this letter it cannot be deemed to be served on me as we agreed that I would only be served documents at XYZ address”?
Technically parties to an agreement can agree whatever they want. However if, for example, it was agreed between the parties to an agreement that a document would only be served on the tenant at Address X but the document was in fact served at Address Y – if it is proved that the tenant actually received it, I would be very surprised indeed if the Judge disallowed service of the document just because it was served at a different address.
Or can it be deemed served under s196 if you asked for it to be served elsewhere?
Alternatively, are you asking if the landlord can be deemed to have served a notice on you, if it was served on you in England but you never got it because you are currently abroad AND you told the landlord this and asked that any paperwork be sent to you there.
My feeling here is that if s196 is incorporated into your tenancy and the service complied with it – the notice will be deemed served – as it was in the case above where the tenant was actually in prison.
The way to avoid this happening is to arrange for your post to be re-directed to you while you are abroad by a postal re-direct. Or arrange for a friend to come in and do this for you while you are away.
Have you GOT to use section 196?
So far as your second question is concerned, section 196 (assuming it applies to an agreement) is permissive only. You don’t HAVE to use the methods of service it describes.
So long as you are able to prove service it won’t matter if it was served in some other way.
If a notice is served, the party who served it has the job of proving that it was served, if the person who is supposed to have received it denies this.
Section 196 is there to help in hard cases. However, it does not always apply and documents do not have to be served in the manner set out in the section.
So long as you can prove that the notice (or whatever) was actually received – that is enough.