Landlords: do you have a provision for serving Notices (and other documents) in your Tenancy Agreement?

In a recently reported case the Landlord had served a Section 21 Notice and issued possession proceedings based on that Notice. The Tenant accepted she had received the Notice but denied she had received any of the documents a Landlord must provide a Tenant to ensure a s.21 Notice is valid, i.e. Gas Safety Certificate (if relevant), Energy Performance Certificate and “How to Rent” guide and relevant Tenancy Deposit Scheme obligations before the service of the Notice.

The Landlord ran three alternative arguments in support of the Notice being valid:-

• Firstly, they claimed the Interpretation Act 1978 applied so that provided they could prove any documents had been sent by post to the Tenant they should be held to have been delivered and a bare denial by the tenant they had ever been received would not counter the presumption that they were delivered.
• Secondly, that the Tenancy Agreement provided that any “Notice” was “deemed” served if properly addressed and posted (i.e. without the need for further proof of receipt) and that the documents which made up the prescribed information referred to above amounted to “Notices”.
• Finally, the landlord also argued that there was a common law presumption that a document which was posted was received in the usual course of events and that a mere denial of receipt was insufficient.

The Court of Appeal found for the Landlord but based on the provision in the Tenancy Agreement, i.e. the second argument above. rather than the other two arguments. The Court found that the Interpretation Act 1978 did not apply so that argument failed; because they found for the Landlord on the deeming provision in the Tenancy Agreement the third argument was not considered (albeit there was an indication that that argument would probably have succeeded also).

The important element of this decision is the fact that the Tenancy Agreement contained a clause providing that any “Notice” served by either party was deemed served if properly addressed and posted.

The Court of Appeal held that “Notice” would include the prescribed documents referred to above as well as the Section 21 Notice.

Consequently despite the Tenant’s claims she had not received the prescribed documents the Court decided they were deemed to have been served and the Section 21 Notice was valid and a Possession Order granted.

Landlords should make sure they incorporate a suitable service clause in their Tenancy Agreements.