NRLA intervening in Section 21 appeal
The NRLA has applied to intervene in a legal appeal on whether it's acceptable for vital rental documents to be served by post.
The association reported last month that a second appeal has now been granted in the case of D’Aubigny v Khan.
The initial hearing saw the tenant argue that the Section 21 notice they were served was invalid, as prescribed information – which includes a property's gas safety certificate, the How to Rent guide, deposit information and energy performance certificate (EPC) – cannot be served by post.
The NRLA is intervening to try to ensure that service by post remains an option for landlords and will be submitting evidence to back up its argument that this is legally valid to the court.
The background
Ms D’Aubigny was a tenant of the Khan's under an assured shorthold tenancy when landlords served a Section 21 notice to regain possession of the property.
This possession claim was contested on the basis that the EPC, gas safety certificate and how to rent guide had not been received by the tenant, which would invalidate the Section 21 notice.
The tenant argued that the tenancy agreement did not contain a clause explicitly stating that these documents could be served by post.
Instead, the clause referred only to ‘notices’ being served by post.
As a result, the landlords would have to show evidence that the tenant had received them, rather than relying on proof of postage.
She also argued that Section 7 of the Interpretation Act 1978, which covers service of documents by post, did not apply because the relevant legislation does not specifically state that these forms may be served by post.
The landlords' argument
The landlords argued that they had served the documents by recorded delivery and there was a clause in the agreement stating that such notices sent by post to the property would be deemed served on the tenant.
In addition to this, they said Section 7 of the Interpretation Act 1978 does apply, meaning that service of documents '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.”
In the initial decision, and the first appeal, the judges agreed with the landlord, taking the view that clauses stating that notices could be served by post and included documents such as the EPC or gas safety certificate.
The judges also took the view that the Interpretation Act did apply, allowing landlords to serve required documents by post unless the legislation specifically stated it did not.
Despite this, the Court of Appeal has now granted permission for a second appeal.
What does the NRLA think?
Most tenancy agreements typically have a clause stating that notices are deemed served when sent or left at the property, and many landlords will rely on this clause when serving any required documents.
Therefore, should the Court of Appeal find in favour of the tenant, many of the time sensitive documents landlords have served could be deemed invalid.
Similarly, if it takes the view that legislation must specify when posting a document is sufficient for service, then, going forward, many of the documents required to be served under a tenancy could not be served by post.
This could include things such as Section 21 or Section 8 notices.
In its evidence, the NRLA will argue that the notice clause in question is extremely common, and virtually all landlords have – and rely on – a clause allowing service by post in their agreements.
What happens now?
The association has now requested formal permission to intervene in the appeal and submit supplementary evidence for consideration by the court.
We will continue to keep you informed of the progress of the intervention and the appeal, and in the meantime would recommend that landlords ensure their tenants sign on receipt of any required documents, as this will evidence the tenant has received them.
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Keep an eye on our news centre and social media channels for update of the progress of the case.
