Breaking news: NRLA in appeal court victory

The Court of Appeal has ruled in favour of a landlord, ruling that they could serve essential tenancy documents by post.

The NRLA intervened in the case, which could have had wide reaching ramifications for landlords and agents, had the court found in the tenant's favour.

The crux of the D’Aubigny v Khan case was the question of whether notices and other documents can be served by post, and whether landlords can set out in a tenancy agreement how a document can be served.   

The facts of the case  

Ms D’Aubigny was a tenant of the Khan's under an assured shorthold tenancy when the landlord served a section 21 notice to regain possession of the property.   

The tenant did not dispute receiving the section 21 notice, but contested the claim on the basis that the Energy Performance Certificate (EPC), gas safety certificate and how to rent guide had not been received, invalidating the section 21 notice.   

The landlord argued that these notices were served validly because: 

• There was a clause in the tenancy agreement stating that notices could be served by post; 

• The Interpretation Act 1978 applied, and once a document had been posted with the correct address it fell to the tenant to show they had not been received; and 

• Under the common law there was a similar presumption that a properly addressed letter was deemed to be received unless the tenant could prove they had not been received.   

The tenant argued that: 

• The EPC, GSC and how to rent guide were not notices, so the tenancy agreement clause stating that notices could be served by post did not apply; 

• 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; and 

• That the common law position was different from that argued by the landlord.  

The decision 

The Court of Appeal found in favour of the landlord on two of these points, concluding: 

• A clause that refers to the service of notices also covers other legal documents that are required as part of the tenancy agreement. They said a notice is not just something specifically called a notice, but also includes any document that the landlord may be required to serve for a formal purpose. As a result, documents such as gas safety certificates can be served by post if the tenancy allows for it. 

• There is a common law presumption that a letter sent to the correct address will be deemed received unless the recipient can prove otherwise.  

• The Interpretation Act 1978 does not apply unless the relevant legislation specifically authorises service by post. So, for example, it would not apply to section 21 notices. 
   

What does this mean for you as a landlord? 

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.  

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. 

However, following this decision, landlords who use the NRLA tenancy can have confidence that they can serve this and other documents they are legally required to provide by post.   

More information

You can read the NRLA's detailed guide on creating a tenancy here with downloadable resources for members here. Not yet a member? Join today by clicking here.