Providing for service of notices in your tenancy agreement
There are two elements to this, service of notices upon you (the landlord), and service of notices upon tenants. Both should be dealt with in tenancy agreements.
Service of notices on the landlord
It is not always realised that there is legislation, section 48 of the Landlord and Tenant Act 1987, which specifies that tenants must be provided “with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant”. Sub section 2 goes on to say:
Where a landlord of any such premises fails to comply with subsection (1), any rent or service charge otherwise due from the tenant to the landlord shall … be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.
Which means that if you have not given the notice, the tenant does not have to pay rent until you do (at which stage all the back rent will fall due so you will not lose anything).
Or, if you do not give the notice, and bring proceedings for possession based on rent arrears, your tenant will have a valid defence.
It is normal for the section 48 notice to be given in tenancy agreements. There is case law which says that so long as there is an address, in England and Wales, given for the landlord in the agreement, this does not specifically have to say that it is a section 48 notice.
It is very important therefore that tenancy agreements include an address for the landlord. Although the s48 notice can be given separately, if it is in the tenancy agreement is easier to prove to that it exists and has been received.
The address does not have to be the landlord’s home address. It can be a business address. Frequently it is the letting agents’ address. It can also be the address of a friend or relative, for example, if the landlord is not using an agent and lives in Scotland or overseas (so his own address would not comply).
Service of notices on tenants
It is also a good idea to set out arrangements for serving notices on the tenant. The best method of service is personal service on the tenant (ie handing it to them, or throwing it down at their feet if they refuse to take it).
However often the landlord will not want to risk a confrontation, or the tenant may never be available to receive personal service. In that case, the next best thing is service by leaving the notice at the property (in an envelope addressed to him). This can be by
- Putting it through the letterbox ,
- Sliding it under the door (making sure you are not also sliding it under the carpet too), or
- Sticking it across the lock of the door so the tenant has to take it off to get in(a process servers favourite) .
It is advisable to have a clause in the tenancy agreement saying that notices will be validly served on the tenant by leaving them at the property. The clause should also say that the notice will be ‘deemed served’ on the tenant on the next working day after it has been left at the property.
Tenancy agreements sometimes refer to section 196 of the Law of Property Act 1925. This is a section which provides for service of documents on lessees/tenants and mortgagors. It says basically that they will be deemed served the day after they are left at the property concerned, or if they are served by recorded delivery, on the day after they would have been delivered in normal course, provided the letter is not returned by the postal authorities.
So referring to section 196 of the Law of Property Act, is a sort of legal shorthand for saying this, and this is often done in leases. Except if you are preparing a tenancy agreement for ordinary tenants (ie consumers) they won’t normally have a clue about the Law of Property Act (and why should they?) so it is perhaps best avoided. See also this post.
Electronic service
Most people nowadays will want to serve notices by email. This is provided for in the rules, but only if the tenant has specifically agreed. So it is best to have a clause, ideally towards the top, specifically setting out the tenants email address for service and providing for the tenants to let you know if this is changed.
My tenancy agreements provide for this to be specifically signed by tenants. You may also want to mention the “How to Rent’ booklet which the regulations say can be served on tenants if they agree.
However, with important notices like section 21 where tenants may be trying to find excuses to defend your claim, I would recommend that if at all possible the notice is delivered to the property by hand, with an independent witness.
See more about service of documents here.
