MEMBER FIRM OF
The recent case of London Borough of Southwark v Runa Akhtar, Stel LLC [2017] UKUT 0150 (LC) has provided some welcome clarification on serving notices by post.
In many cases, a lease or legislation will contain provisions governing how notices are to be served. Such provisions must be carefully adhered to. The situation is more difficult where neither the lease nor the statute requiring a notice specifies how service is to be effected. A summary of the law in these cases is as follows.
· If Section 196 of the Law of Property Act 1925 (“Section 196”) applies to a lease, a notice is “served” if it is either left at the premises demised by the lease, or sent to a tenant by Recorded Delivery, addressed to the recipient at their last known place of abode or business, and it is not returned undelivered. Service in the latter case is deemed to take place in the ordinary course of post.
· Section 7 of the Interpretation Act 1978 states that where an Act authorises or requires any document to be served by post, service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document.
· Service under Section 7 is also deemed to have taken place at the time at which the letter would ordinarily be delivered, unless the contrary is proved. There is therefore a presumption of service.
· If no other provision applies, notices are served when they “come to the attention” of the recipient. This is clearly difficult to prove and results in uncertainty.
Facts
The landlord served notice under section 20B of the Landlord and Tenant Act 1985 (“Section 20B Notice”) on leaseholders in a block of flats. The 1985 Act simply requires that notices are served “in writing”. The defendant tenant’s lease stated that "section 196 of the Law of Property Act 1925 shall apply to any notice under this lease".
The tenant denied that she received the notice and therefore argued that it was not properly served.
The Court’s decision
The court considered the difference between a notice served under a lease and a statutory notice (i.e. a notice required to be served by legislation and not specifically referenced in the lease). It was held that, in this context, the lease was effective in making section 196 applicable to notices served “in connection with” the lease. On that basis, the provisions of Section 196 applied to service of the Section 20B Notice.
The result is that a lease with similar wording will give effect to the service provisions of Section 196 in cases where the act under which the notice is served is silent on methods of service.
The court held that, where Section 196 applies to a notice, Section 7 will also apply because service by post was authorised by Section 196. As a result, notices served by first class post will be deemed served in the ordinary course of post, unless the contrary is proved.
As to what evidence is required to demonstrate service or non-receipt under Section 7, the case provided the following very useful guidelines:
· The sender does not need to give evidence of the exact time a notice was sent. The landlord’s evidence given as to the process by which notices were served was enough to show that the notices were sent.
· The tenant’s arguments as to why she did not receive the notice were a “bare denial”. As a matter of law, the tenant’s submissions were not sufficient to rebut the presumption of service in Section 7.
Practice points
1. The general rule of ensuring that any notice strictly follows any express service requirements set out in the lease still stands.
2. If possible, notices should be served by Special or Recorded Delivery, in order to obtain proof of delivery if/when it is signed for.
3. However, this case makes it safer for the serving party to rely on a notice served by First Class post.
4. Whichever method is used, every business should endeavour to keep a record of when notices are posted and by whom, and a digital or paper copy should be kept of the covering letter and all enclosures, so that, where Section 7 applies, it will be for the recipient to prove that the notice was not received.
