Can I rely on posting a section 21 notice? – Deemed service provisions when interpreting s.21(1)(b) of the Housing Act 1988
Wanstead County Court on 20 September 2023 decided that the CPR deemed service provisions could not apply when interpreting s.21(1)(b) of the Housing Act 1988 creating further confusion as to the position in these rare cases where an Assured Shorthold Tenancy agreement (“AST”) is silent with regard to deemed service of notices ending rights in land.
This means that expert legal advice should always be sought before serving the section 21 notice (as we have written elsewhere any preconditions to service of a section 21 Notice may result in any subsequent accelerated possession claim being thrown out which can cause a delay of many months to you regaining possession – the same delay will apply if the service of the notice is invalid).
The landlord of a residential property in Wandsworth, London served a section 21 notice by Royal Mail, first class post on her tenant via her representatives. The tenant initially had a fixed term AST which became an assured statutory periodic tenancy thereafter.
The AST provided as follows with regard to service:
“Any notices to the tenant about the tenancy must be sent by ordinary first class post to the tenant at the address of the property. Any notices to the landlord about the tenancy must be sent by ordinary first class post to the address shown in the accompanying notice given under Section 48 of the Landlord and Tenant Act 1987”.
The AST was silent as to deemed service of any notice sent to the tenant.
The landlords section 21 notice was dated and posted to the tenant on 7 December 2021. It was deemed served on 9 December 2022, the second day after posting pursuant to CPR 6.26. The landlords representatives filed a Certificate of Service confirming the same.
The notice provided for possession to be given on 11 February 2023; thus not less than two months’ notice after the notice, for the purposes of section 21(1)(b) of the Housing Act 1988.
In defence of the possession claim, the tenant provided a witness statement stating that the section 21 notice was actually received on 13 December 2022, some 6 days after posting with the delay being caused by postal strikes that were taking place at the time during the period 9 December 2022 and 11 December 2022. Thus, the tenant asserted that she had been provided with less the requisite two months’ notice or more and the possession claim should fail.
Background Law and Conclusions of the Judge
The relevant provisions of section 21(1) of the Housing Act 1988 provide as follows:
‘(1) Without prejudice to any right of the landlord under an assured shorthold tenancy to recover possession of the dwelling-house let on the tenancy in accordance with Chapter I above, on or after the coming to an end of an assured shorthold tenancy which was a fixed-term tenancy, a court shall make an order for possession of the dwelling-house if it is satisfied –
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months’ notice in writing stating that he requires possession of the dwelling-house.’ [emphasis added].
Accordingly the judge had to interpret the meaning of “given” for the purposes of section 21(1)(b) of the Act.
Was this when the notice was deemed served on 9 December 2023, such that the requisite two months’ notice had been provided or was it when the tenant alleged it was received on 13 December 2023, such that the period was insufficient resulting in the notice being defective and the possession claim failing?
Both the landlord and tenant attended the disposal hearing. The landlord’s position was that regardless of when the notice was purported to be received by the tenant, in circumstances where the AST was silent as to deemed service, CPR 6.26 would apply. This position was resisted by the tenant who gave evidence at the hearing in support of her assertion that the notice was received on 13 December 2023.
The Court’s approach was that staring point was the interpretation of CPR 6.26 which provides as follows:
“A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice direction is deemed to be served on the day shown in the following table………”.
The Judge found that CPR 6.26 could not apply to the service of a section 21 notice because CPR 6 was aimed at documents served within the course of legal proceedings such as a Defence or application notice. The Judge was of the view that a section 21 notice, served before proceedings were issued and with the intention of ending a tenancy, could not come within the CPR rules. If a landlord could rely on the CPR when serving notices ending a right in land then it would make entirely irrelevant all case authority dealing with service of notices ending rights in land.
The Judge found that in these circumstances, section 7 of the Interpretation Act 1978 would apply and which provides as follows:
“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”.
Section 7 of the Interpretation Act 1978 provides a rebuttable presumption which in this case was engaged by the tenant. After hearing the evidence the Judge found in the tenants favour in that, on the balance of probabilities, the section 21 notice was received on 13 December 2023 (the position being supported by evidence confirming postal strikes at the time of service).
Consequently the landlords claim for possession was dismissed.
The decision in Harding v. Bell & Persons Unknown (K00WT348) heard on 20 September 2023 by Deputy District Judge Davis (unreported), albeit only a County Court level (so of persuasive authority only) once again shows that landlords should not throw caution to the wind when dealing with service of notices ending rights in land when the contract upon which that right is founded is unclear as to service.
Any ambiguity is open to dispute and landlords should always look to add certainty to the position in these circumstances by serving any notice personally on tenants by process server.
How can we help?
We provide assistance in both the service of section 21 notices and accelerated possession claims. For further advice please contact Adem Esen at Kenneth Elliott and Rowe Solicitors.
Adem is a Solicitor (with Higher-Courts Civil Proceedings rights) and is experienced in dealing with the service of section 21 notices and accelerated possession proceedings in England.
email: email@example.com or call Adem on 01708 707851.