Section 21 appeal could have major implications for landlords
A second appeal has been granted in the case of D’Aubigny v Khan - in which the Court of Appeal will rule on whether it's acceptable for vital documentation to be served by post. The appeal could have major implications for private landlords. Head of Policy James Wood explains more.
The case of D’Aubigny v Khan has been granted a second appeal.
The initial hearing saw the tenant argue that the section 21 notice they were served was invalid, as prescribed information - which includes a property's gas safety certificate, the How to Rent guide, deposit information and energy performance certificate (EPC) - cannot be served by post.
The facts of the case
Ms D’Aubigny was a tenant of the Khan's under an assured shorthold tenancy when landlords served a section 21 notice to regain possession of the property.
This possession claim was contested on the basis that the EPC, gas safety certificate and how to rent guide had not been received by the tenant, invalidating the section 21 notice.
The tenant argued that the tenancy agreement did not contain a clause stating that these documents could be served by post.
Instead, the clause 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.
She also argued that Section 7 of the Interpretation Act 1978, which covers service of documents by post, did not apply because the relavent legislation does not specifically state that these forms may be served by post.
The landlords argued that they had served the documents by recorded delivery and there was a clause in the agreement stating that notices sent by post to the property would be deemed served on the tenant.
In addition to this, they argued that the Section 7 of the Interpretation Act 1978 applied, meaning that service of documents '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.”
What happened next?
In the initial decision, and the first appeal, the judges agreed with the landlord, taking the view that clauses stating that notices could be served by post and included documents such as the EPC or gas safety certificate.
The judges also took the view that the Interpretation Act did apply, allowing landlords to serve required documents by post unless the legislation specifically stated it did not.
However, the Court of Appeal has now granted permission for a second appeal.
What does this means for landlords?
If the Court of Appeal finds in favour of the tenant, there could be significant implications for landlords.
Such a ruling could mean that many of the time sensitive documents landlords have served would be invalidated.
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.
Similarly, 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.
This could include things such as section 21 or section 8 notices. There could also be a knock-on effect for proposed legislation such as the mandatory written tenancy agreements outlined in the Renters (Reform) Bill.
Intervention
Given the scope of the potential impact on landlords, the NRLA intends to intervene in this case to try to ensure that service by post remains an option for landlords.
In the meantime, we would recommend that landlords ensure their tenants sign on receipt of any required documents, as this will evidence the tenant has received them.
- Keep an eye on our news centre and social media channels for update of the progress of the case.
