Now that the Court of Appeal has given judgment and permission to appeal to the Supreme Court in Khan v Khan, Sarah McKeown revisits her article about the service of documents required before a valid s.21 notice can be given 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 certain documents.
The relevant documents include the EPC, How to Rent Guide, gas safety documents.
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 word “serve” is used) then 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 Khan v Khan
The 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 said that she did not receive them, and that, without a contractual clause in the tenancy agreement permitting service by post, the landlords had to prove that they 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 and the landlords put in a Respondent’s notice, contending that the Deputy District Judge would have reached the same result even if the claimants had been required to prove service at common law (i.e. actual, rather than deemed service) and so the only conclusion the Deputy District Judge could have reached was that service had been proven on the balance of probabilities.
The Circuit Judge upheld the possession order.
The tenant appealed to the Court of Appeal.
The appeal
The Court of Appeal dismissed the appeal, although the tenant did succeed on her argument as to the application of Section 7 Interpretation Act 1978.
The court held that:
- Section 7 Interpretation Act 1978 did not apply to s.21 Housing Act 1988 – s.7 was not engaged unless the statue (in this case, Housing Act 1988) referred in terms to service (or sending, giving or any like word) of a document “by post”
- The letter serving the gas safety certificate, EPC and How to Rent was a “notice” within the meaning of the tenancy agreement and those documents were sent “in connection” with the tenancy agreement
- There was a common law presumption that a properly addressed letter, which is posted is presumed to reach its destination unless the intended recipient can prove the contrary (which, in this case, the tenant had not done).
Where to now?
The findings of the Court of Appeal go beyond s.21 Housing Act 1988.
- Firstly it can apply to any document served according to a statute which does not expressly refer to service by post.
- Secondly, the court said that a “notice” means a notice in writing and which is given for a formal purpose simply stating something, which, in the case of a landlord and a tenant, means in connection with their relationship of landlord and tenant.
- Thirdly, the re-stating of the common law presumption of service is not new but may raise an argument as to how a tenant is to prove a negative. How do you prove you have not received something?
Nugee LJ (para. 74) said that all a tenant needs to do is to prove that s/he had not received it (and did not have to give positive evidence about what had happened to the letter). However it is difficult to see how that can be done without the tenant offering an explanation as to what may have happened to cause the letter to go astray. Certainly, in this case, the simple assertion that the notice had not been received was insufficient to satisfy the Deputy District Judge.
We wait to see if the Supreme Court will grant permission to appeal.