Service please! ‘deemed’ vs ‘actual’ service before a s.21 notice

10 June 2024

Landlord and tenant advisers: be aware! The Court of Appeal is going to consider the issue of service of documents before a valid s.21 notice can be given (eg EPC, How to Rent Guide, gas safety documents) and whether s.7 Interpretation Act 1978 (and a relatively commonly-used form of wording in a tenancy agreement relating to deemed service) applies to the service of such documents.

D’Aubogny v Khan & Anor is a County Court decision but permission has been given for an appeal to the Court of Appeal.

So currently this is really a 'watch this space' warning.

The decision emphasises the difference between 'deemed' service and 'actual' service and the importance of a landlord having proper factual evidence as to the service of documents, particularly where the tenant simply denies receipt.

Section 7 Interpretation Act 1978

Section 7 Interpretation Act 1978 states that where an Act 'authorises or requires any document to be served by post' (irrespective of whether the expression 'serve' is used) then, unless the contrary indication appears, service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, service is deemed effected at the time the letter would be delivered in the ordinary course of post.

Background to D’Aubogny v Khan & Anor

The claimant landlords had let a property to the defendant tenant.

The tenancy agreement contained a clause (cl. 13(2)(a)) that:

Any notice sent to the tenant under or in connection with this agreement shall be deemed to have been properly served if sent by first class post to the property.

The landlords issued a claim for possession based on service of a s.21 notice.  They said they had served the How to Rent guide, EPC and gas safety record by post.

The tenant denied receiving them. She said that because there was no contractual clause in the tenancy agreement permitting service by post, the claimants had to prove that the documents had come to her attention.

At first instance, a Deputy District Judge found that s.7 Interpretation Act 1978 applied and, in the alternative, that cl.13(2)(a) of the tenancy agreement provided for deemed service (the word “notice” included documents which were prerequisites to notices).

The tenant appealed.

The landlords put in a Respondent’s Notice, contending that the Deputy District Judge would have reached the same result even if they had been required to prove service at common law (ie actual, rather than deemed service).

The documents had been posted correctly, the judge had accepted the landlords’ evidence in this respect and the tenant’s case amounted to no more than a bare denial of receipt. The judge accepted receipt of the s.21 notice.

It was said that the only conclusion the Deputy District Judge could have reached was one that service had been proven on the balance of probabilities.

The appeal

The tenant’s appeal came before HHJ Baucher.  In summary, the judge found:

  • Section 7 Interpretation Act 1978 did apply – it was not the case that it applied only when postal service is expressly authorised or required;
  • on an objective analysis of cl. 13(2)(a), it clearly encompassed any documents required to be served prior to a s.21 notice being valid, rather than just applying to the s.21 notice itself.

In view of these findings, the judge did not need to go on to consider the point raised in the Respondent’s Notice.

However she did so, finding that whilst every case turned on its facts, the only conclusion the Deputy District Judge could properly have reached was that the service of documents had been proved by the landlords, on the balance of probabilities.

Where to now?

What will the Court of Appeal make of this, both in terms of s.7 1978 Act and the contractual clause? Tenancy agreements for assured shorthold tenancies frequently contain a similarly worded clause in terms of service of notice.

Will the Court of Appeal’s judgment have any wider application? HHJ Baucher’s found that there should be a broad and “purposive” interpretation of s.7 Interpretation Act 1978. Also the landlords’ contended during the appeal that, if the tenant were correct in her submissions, notices pursuant to s.8, s.13 and s.21 were all “at risk”.

The circuit judge’s finding on the Respondent’s Notice may assist landlords, who are often met in court with a bare denial of receipt of some or all of the required documents.

However the case does make clear the importance of landlords having proper evidence:

  • that the documents were sent
  • how they were sent and when
  • that they were sent to the correct person and address, and
  • that they had not been returned (as well as any evidence that other documents, sent in a similar manner, had been received).