A judgment was recently passed down in D’Aubigny v Khan and Anor in the Court of Appeal, which concerned whether service by post of a gas safety certificate, EPC and How to Rent guide was deemed served under the tenancy agreement, under Section 7 of the Interpretation Act 1978 or otherwise.
The facts
The landlord brought possession proceedings under a Section 21 notice.
The tenant argued that despite the fact that she had received the Section 21 notice, she had not received the gas safety certificate, EPC or How to Rent guide. Pursuant to the Deregulation Act 2015, such documents must be served on the tenant prior to service of a Section 21 notice and are therefore a precursor to any valid Section 21 possession claim.
The issue
The landlord confirmed that he had sent the gas safety certificate, EPC and How to Rent guide by post and recorded delivery and therefore they were given for the following reasons:
- 1. Section 7 of the Interpretation Act 1978 applied. Section 7 Interpretation Act states that service is deemed effective when documents are properly addressed, pre-paid and posted.
- A clause in the tenancy agreement provided 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’.
- There is a common law presumption of receipt of a properly addressed letter that has not been rebutted.
The tenant disputed all three arguments. She denied that the Interpretation Act 1978 Act applied to the Housing Act 1988 as nothing in the 1988 Act “required” or “authorised” service by post. She argued that the gas safety certificates, EPCs and How to Rent guides were not accounted for under the term “notice” in the tenancy agreement. Thirdly, she denied that the common law rule applied.
The decision
The Deputy District Judge and the Circuit Judge found in favour of the landlord in all instances. The tenant appealed this decision.
The Court of Appeal found in favour of the landlord on the second and third points above for the following reasons:
- Section 7 of the Interpretation Act 1978 applies where an Act authorises or requires any document to be served by post. As the Housing Act 1988 does not expressly authorise or require the prescribed documents to be served by post, they just must be given, the Landlord could not rely on this presumption of service.
- The letter serving the gas safety certificate, EPC and How to Rent guide was a ‘notice’ within the meaning of the tenancy agreement, as the documents were sent in connection with the tenancy agreement. A notice is simply something which notifies a recipient of something in writing for a formal purpose, in connection with their relationship of landlord and tenant. The letter serving the documents was subsequently a notice and was properly served under the terms of the tenancy agreement.
- There was a common law rebuttable presumption that a properly addressed letter which is posted is presumed to reach its destination unless the intended recipient can prove the contrary. It is potentially sufficient to simply deny receipt, if the court is satisfied on the balance of probabilities that this was credible evidence, but that was not applicable in this case. This presumption is stronger if notices are sent by registered post which have not been returned. The letter serving the documents was properly addressed and posted.
Comments
The common law position is a rebuttable presumption of service, which may come down to the Court’s view of context and witnesses at a hearing.
Landlords would do well to ensure they have clear provisions as to service of both notices and documents relating to the tenancy set out in the tenancy agreement. This includes how the tenant may serve notices and documents on the landlord and how the landlord may serve notices and documents on the tenant.
In the absence of any such clause, the belt and braces approach to service of notices and tenancy related documents would be to serve by hand, first class post, recorded delivery and by email where possible.
Should you require assistance with recovering possession of your property, please contact a member of our Possession Team.
Please note that the above does not constitute legal advice.
