Valid service of the prescribed documents (Gas Safety Certificates, EPC and How to Rent guide) for the purposes of serving a Section 21 notice has recently been considered in the case of D'Aubigny v Khan & Anor, which was later appealed (CA – 2023 – 002567)
Facts
- Ms D'Aubigny was the tenant under an assured shorthold tenancy agreement. The Khans were the landlords.
- The landlords served a Section 21 notice.
- The tenant challenged the validity of the Section 21 notice, claiming that she had not received the prescribed documents.
- The landlords had served the prescribed documents by post to the tenant.
Issue
- The tenant argued that not only had she not received the prescribed documents, but there was also no clause in the tenancy agreement which permits service of the prescribed documents by post.
- The landlords argued that the tenancy agreement included a clause which allowed service of the prescribed documents by post but in any event Section 7 of the Interpretation Act 1978 ("the Act") applied, which permits service by post.
- The clause in the tenancy agreement 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."
- Section 7 of the Act reads:
"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."
Outcome
The tenant argued that the prescribed documents are not a 'notice' for the purposes of the above clause. The judge in the County Court at first instance held that this claim by the tenant was incorrect and the word 'notice' included documents that were required to be served prior to any notice, including the prescribed documents served prior to a Section 21 notice. The judge also held that nonetheless, Section 7 of the Act applied. Therefore, the prescribed documents were validly served prior to service of the Section 21 notice.
Appeal
- The tenant appealed the above outcome.
- The prescribed documents are not expressly authorised or required to be served by post under any legislation.
- The appeal judge found at Section 7 of the Act did apply to the prescribed documents. The judge, in deciding this, drew on the judgment in Freetown Limited v Assethold Limited (2012) EWCA Civ 1657 – which stated that Section 7 of the Act generally applies to statutory provisions which authorise or require service of notices which affect land.
- The appeal judge also confirmed that the term 'notice' used in the tenancy agreement was not defined in the tenancy agreement, and so the prescribed documents in question could be implied into the term 'notice', when the entire clause is read as a whole.
- The tenant's appeal was dismissed.
Key takeaways
The tenant has since appealed the judgment again and the case will now be heard in the Court of Appeal. Therefore, the above outcome may be overturned.
The best course of action for landlords and letting agents is to ensure that tenancy agreements confirm how notices and documents relating to the tenancy may be served to each party. If a tenancy agreement has been entered into and it only provides for how notices can be served (in both the clauses of the agreement or definitions), the belt and braces approach would be to serve the notices in accordance with how notices can be served under the agreement, as well as by first-class post, recorded delivery and hand delivery. It would also be beneficial to have the tenant confirm receipt of the documents in order to show that the tenant has accepted service.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.