Landlord wins Appeal Court case on service of tenancy documents

The Court of Appeal has ruled in favour of a landlord, confirming they can serve essential tenancy documents by post.

The National Residential Landlords Association (NRLA) intervened in the case, which had the potential to impact landlords and letting agents.

The D’Aubigny v Khan case centred on whether notices and other documents could be valid when served by post and whether landlords could include provisions for service methods within tenancy agreements.

Serve important documents via post

James Wood, the NRLA’s head of policy, said: “As a result of this decision, landlords can continue to have confidence that they can serve important documents via post.

“However, it continues to highlight the importance of having a well-drafted written tenancy agreement such as the NRLA’s own assured shorthold tenancy.

“In this case the landlord’s strongest argument was that the contract provided for services of notice by post.

“Given the Court of Appeal’s decision, clauses like this would also apply to any other formal information required by the law.”

He added: “This is important, as landlords are likely to be serving a number of new formally required documents later this year as part of changes coming in as a result of the Renters’ Rights Bill.

“For example, when the Bill becomes law, landlords with existing tenants will be required to serve a document, as yet unpublished, covering the changes to the tenancy.

“Had the tenant been successful in this appeal, landlords may not have been able to post this document to prove compliance, leaving them open to potential fines.”

Received a section 21 notice

Ms D’Aubigny, a tenant under an assured shorthold tenancy, received a section 21 notice from her landlord, the Khans.

While acknowledging receipt of the notice, she contested the claim, arguing that the Energy Performance Certificate (EPC), gas safety certificate and ‘How to Rent’ guide had not been properly served.

That meant the section 21 notice was invalid.

The landlord argued that:

• The tenancy agreement explicitly stated that notices could be served by post
• The Interpretation Act 1978 applied, placing the burden of proof on the tenant to demonstrate non-receipt of properly addressed mail
• Common law established a presumption of receipt for properly addressed letters unless the tenant could prove otherwise.

Ms D’Aubigny countered:

• The EPC, gas safety certificate, and ‘How to Rent’ guide were not ‘notices’ and therefore not subject to the tenancy agreement’s service clause
• Section 7 of the Interpretation Act 1978 did not apply because the relevant legislation did not specifically authorise service of these documents by post
• The common law position differed from the landlord’s interpretation.

The Court of Appeal sided with the landlord on two key points:

• The court ruled that a clause referring to the service of notices also encompasses other legally required tenancy documents.
• The court upheld the common law presumption that properly addressed letters are deemed received unless the recipient can prove otherwise.

The court did not find the Interpretation Act 1978 applicable in this instance.