The Court of Appeal is considering an appeal by a tenant which challenges the service of prescribed documents by post (D’Aubigny v Khan & Anor [2023]), set for hearing in December 2024.

If the Court of Appeal finds in favour of the tenant, there could be significant implications for landlords of private residential property and their advisors.

For the time being, landlords and their agents should urge residential tenants to sign and/or expressly acknowledge receipt in writing when receiving any important documents.

Background

The respondents are the landlords of a premium residential flat under an assured shorthold tenancy (an AST).

The landlords served a s.21 notice under the Housing Act 1988 requiring possession of the property. As a pre-requisite for a S.21 Notice to be valid, the tenant must have been provided with the usual prescribed information including EPC, gas safety certificate, ‘How to Rent Checklist for Renting in England’ etc. (together the “Documents”).

The landlords asserted that the Documents had all been served by post, send by recorded delivery and they had not been returned.

The tenant (Ms D’Aubigny) asserted:

• She had never received the Documents;
• The AST did not permit service of the Documents by post (it referred only to ‘notices’ being served by post); and
• It was for the landlords to evidence that the information had been properly served and had come to her attention.

In response, the landlords argued that in any event:

 S.7 of the Interpretation Act 1973 (the “Act”) applied. The Act provides that where any legislation authorises or requires service of a document by post, then unless the contrary intention appears, service is deemed to be affected by properly addressing, pre-paying and posting a letter containing the document; and

The AST provided for deemed service of notices, and ‘notices’ included documents which were prerequisite to notices (including the S.21 Notice).

Initial Hearing

The Judge agreed with the landlords’ arguments, and found that the Documents were properly served as s.7 of the Act applied and, in the alternative, the service clause in the AST permitted and included documents that were pre-requisite to service of notices.

The relevant clause in the AST stated: “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.”

First Appeal

The tenant appealed on the basis that the Judge at the initial hearing had been wrong to find that S.7 of the Act applied in these circumstances, and that the clause in the AST applied in respect of the Documents which were not a Notice.

The appeal was heard by a Circuit Judge,  who dismissed the appeal agreeing with the findings of the Judge at the initial hearing in accepting the arguments of the landlords.

In particular, the Circuit Judge held:

• 7 of the Act provides a general statutory code regarding sending by post, and the presumption is that the Act will apply, unless there is a contrary intention;
• Looking at the wording in the AST, the word notice is not defined term, which it should have been if it was to be confined to a notice per se and nothing else;
• If the word notice was to be confined, then there would be no purpose for the words “in connection with”; and
• The objective construction of the clause would include any documents which are required to be served prior to a S.21 Notice being valid.

As such, the Circuit Judge concluded that the Act applied and provision and wording in the AST allowed for service of the Documents at issue.

The Circuit Judge also took the view that a reasonable person would have understood what the parties meant by the wording contained in the AST, and it was a matter of common sense that the wording included the Documents.

Court of Appeal

Leave has been granted for the tenant to appeal against the findings at the initial hearing and the first appeal, which is to be heard in the Court of Appeal (likely in December 2024).

Landlords should be prepared for significant implications if the Court of Appeal finds in favour of the tenant as the Act impacts widely on the various notices and procedures concerning residential tenancies, and may also impact on standard wording in a variety of AST’s and other residential tenancies.

Any decision of the Court of Appeal could have far reaching implications as to recovery of residential property, including S.8 and S.21 Notices, which will be of dismay to many landlords already frustrated with the practicalities of recovering possession from a defaulting tenant.

Any further judgement on further appeal, could also have wider implications as to increasing the rent (S.13) and claims for arrears of service charge and ground rent if any judgement meant demands had not been properly served.

Druces LLP will keep a keen eye on the outcome of this appeal. In the meantime, in so far as notices requiring possession are concerned, it would appear best practice to not only ensure service by all applicable means (including post), but to take all steps necessary to be able to confirm actual receipt is acknowledged by the tenant.

Written by Benjamin Lomer and Devon Monaghan.

If you would like more information, please contact our Property Litigation team.