Are you being served?
When serving notices or documents relating to a tenancy, it is important to be able to evidence effective service.
This month a client’s claim was dismissed due to a technicality pertaining to service of documents under the tenancy agreement.
Our client had retained a well-known, nationwide managing agent to set up the tenancy and manage the rental. The tenancy agreement did not contain a clause which permitted service of documents via email, and despite the lack of such a clause, notices and other documents under the tenancy were provided to the Tenant via email. We were instructed to proceed with the claim notwithstanding the risk that the ack of this clause may mean the documents were not effectively served.
The claim was issued in February, and a defence was filed in March. The defence alleged that the How to Rent Guide (“HTRG”), Energy Performance Certificate (“EPC”) and the Gas Safety Records (“GSRs”) sent via email were not effectively served and therefore the notice relied on by the Claimant was invalid. Despite it being admitted that the documents had been sent to the correct email address for the Tenant, and being admitted that they were seen by the Tenant a few days after the email was sent, it was denied that they were effectively served on the date they were sent.
On review of the claim in April, the Court listed the matter for hearing in May 2025 when directions were given for the parties to file evidence and prepare legal arguments on the dispute. A final 2-hour hearing was scheduled in July 2025.
The managing agent was able to provide evidence that, prior to entering the tenancy agreement, the Tenant had agreed to accept service of the HTRG via email, but the evidence did not indicate that they had also agreed to accept other documents, such as the EPC and GSRs being served via that means.
After considering the evidence and hearing legal submissions, the Court found that there was no provision for service via email in the tenancy agreement and that the Claimant was unable to establish the documents had been served in accordance with common law principles. (NB. At common law, the Court must be satisfied on the balance of probabilities that the document has been received by and come to the attention of the recipient).
Accordingly, the Court dismissed the claim, and the Defendant was awarded costs.
The Court noted that “It is not unusual nowadays for a Tenancy Agreement to make provision for service by email, but that is not what I am faced with here”
There is of course nothing wrong with service documents via email, indeed this is common. However, if you intend to rely on service via that means, it is absolutely crucial that this method is permitted by your tenancy agreement.
As in this case, it is not sufficient to say that you have ‘previously sent things via email’ or that it is ‘common practice’ to do so.
Legal for Lettings have experts on hand to help you navigate the technicalities of ever-changing legislation and provide advice to ensure you have the best prospects of successfully recovering possession of your property. If you want to see how we can help, or would like us to review your tenancy agreement, get in touch at [email protected].
