It is not only the safe arrival of Christmas presents from retailers that may be impacted by the current spate of Royal Mail strikes. The strikes will also have an impact on the service of various types of legal documents, including the service of notices, such as section 21 and section 8 notices. As such, it seems like an opportune time to revisit the rules regarding the service of these notices.
Why is service important?
Getting service right is vital, yet it is often an element that is often given little thought. Lawyers love the subject - cases can, and are, won and lost on service issues.
For landlords looking to serve a section 21 notice, ensuring good service of the notice is particularly important. There is no ability to invite a Judge to dispense with service. So given the restricted ability of a tenant to ‘defend’ a s21 possession claim, the only option left for a tenant may be to challenge proceedings based on issues re-service.
So, what are the rules?
The starting point is to look at the tenancy agreement. Many tenancy agreements will include a provision that explains how notices should be served, and what will be deemed to constitute good service.
You must ensure you serve any notice correctly by following what you have contractually agreed to do. In the absence of any specific contractual position set out in the tenancy, you would usually consider any statutory provisions that may apply.
Various pieces of property-related legislation contain specific references to service, but the Housing Act of 1988 is frustratingly silent on the issue. Therefore, the simple rule is that to serve a s21 notice, you must demonstrate that the notice came to the attention of the tenant. In the event of a challenge by a tenant, a Judge would consider the evidence on the balance of probabilities.
What should you do in practice?
Given that ‘service’ will occur when the notice in question comes to the attention of a tenant, there are several practical steps we urge landlords to follow.
1. Maximise the chances of a notice reaching the intended recipient by maximising the methods of delivery. Sending by first class and recorded delivery can be sensible. Wherever possible, arranging for hand delivery through the letterbox of the property is also sensible. If the property is a distance away, a process server could be instructed to assist. It will be an additional cost, but a cost well spent if it minimises the chances of service challenges arising before the Court.
2. Allow time for service when drafting the notice. If you only allow 2 days of service, you may be lucky and achieve service in time, but why take the risk? Allow yourself wiggle room for several extra days. Routinely allowing a week extra can be sensible to try and minimise any arguments re short notice.
3. Factor in weekends, bank holidays, etc when calculating notice periods and allow additional time if needed. If your tenancy agreement refers to service on ‘business days,’ remember that whilst there may be a postal delivery on a Saturday, it is not a business day.
Find out more
We know that in many cases, landlords will be keen to get notices served as quickly as possible. But getting service wrong can potentially result in months of delay, so do be careful. We would, of course, be happy to help in the event of any queries.
