The importance of “serving” the prescribed documents prior to the service of a s.21 notice
10 May 2024
Service of the Gas Safety Records (GSR), Energy Performance Certificate (EPC), and How to Rent Guide are vital to the validity of a s.21 notice. A recent County Court decision has raised the question as to whether serving these documents via post is sufficient for a s.21 notice to be valid.
Background
In this recent County Court appeal case of D’Aubigny (tenant) v Khan (landlord), the landlord brought a possession claim based on s.21 Housing Act 1988. The tenant argued that she did not receive a copy of the GSR, EPC, or the How to Rent Guide prior to receiving the s.21 notice. The tenant further argued that there was no contractual clause within the assured shorthold tenancy (AST) which permitted service of these prescribed documents by post and therefore, the onus was placed on the landlord to prove that the tenant had seen a copy of these documents before the s.21 notice.
The contractual clause contained in the AST read:
“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 landlord posted these documents to the tenant via recorded delivery, and they were not returned to the landlord, therefore assuming the tenant had received them. The landlord further argued that there was a clause contained within the AST permitting for service via post and that even if there was no such clause in the AST, s.7 Interpretation Act 1973 would apply in its absence.
S.7 Interpretation Act 1973 (IA 1973):
“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”.
The County Court appeal focused on the two questions below:
- Firstly, does s.7 IA 1973 apply to the service of these prescribed documents which allows landlords to serve these via post to the tenant.
- Did the contractual clause extend to the service of the prescribed documents.
County Court appeal decision
The Circuit Judge held that s.7 IA 1973 did in fact apply to the service of these prescribed documents meaning these documents could be deemed served via post (even where a tenant claims they had not received them). The Circuit Judge also held that the words contained in the AST “in connection with” extended to the prescribed documents and included any documents which are required to be served prior to the service of a s.21 notice.
The Birketts view
This decision is no doubt welcomed by landlords whose usual practice is to serve these documents via post prior to the service of the s.21 notice. This decision also provides comfort to landlords because this means that where the documents are posted via first class or recorded delivery, it would be difficult for tenants to claim they did not receive the documents, unless of course they were returned to the original sender.
A second appeal to the Court of Appeal has been allowed. The outcome of this appeal is certainly going to be an important one which may change the way in which these documents should be served on the tenant for a s.21 notice to be valid.
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Ellie Mullins
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2024.