Landlords have been urged to ensure their tenants sign when receiving any important documents ahead of a court ruling that could have big implications for serving possession notices.

It follows the case of D’Aubigny v Khan which will be heard at the Court of Appeal and centres on whether it is acceptable for vital documentation to be served by post. The tenant - Ms D’Aubigny – argues that a Section 21 notice was invalid because the EPC, gas safety certificate and How to Rent guide had not been received.  

She says the tenancy agreement did not contain a clause that these documents could be served by post. Instead, it referred only to ‘notices’ being served by post. As a result, the landlord would have to show evidence that the tenant had received it, rather than relying on proof of postage.

Relevant legislation

She also argues 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 say they had served the documents by recorded delivery and there was a clause in the agreement stating that notices sent by post would be deemed served. They also insist Section 7 applied.

Required documents

James Wood (pictured right), the NRLA’s head of policy, explains: “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,” he says. “If the Court of Appeal takes the view that legislation must specify when posting a document is sufficient for service, then many of the documents required to be served under a tenancy could not be served by post.”

If the court finds in favour of the tenant, it could mean that many time-sensitive documents landlords have served would be invalidated, Wood tells LandlordZONE. “It wouldn’t be all forms of notice though as there are two arguments, essentially that legislation must specify that a form can be served by post if the Interpretation Act 1978 is to apply; and when a tenancy agreement has a clause stating that notices can be served by post it does not extend to other documents such as the gas safety certificate and the EPC.”

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