The Court of Appeal has granted a second appeal in the case of D’Aubigny v Khan, which centres on the validity of serving vital documentation by post, potentially carrying significant implications for private landlords. The National Residential Landlords Association (NRLA) sheds light on this complex legal issue.
The crux of the matter lies in the contention raised by the tenant, Ms. D’Aubigny, who argued that the section 21 notice served to her was invalid due to the manner in which essential information was delivered. Under scrutiny were crucial documents such as the gas safety certificate, the How to Rent guide, deposit details, and the energy performance certificate (EPC), all of which, according to the tenant, cannot be served via postal means.
Ms. D’Aubigny’s argument pivoted on the absence of a specific clause in the tenancy agreement permitting the delivery of these documents by post. Instead, the agreement only referenced the service of “notices” via post, prompting the contention that proof of receipt, not mere proof of postage, should be the standard.
Contrarily, the landlords contended that they had adhered to legal protocols by serving the documents via recorded delivery, backed by a contractual clause stipulating that notices sent by post to the property would be considered as served. Moreover, they invoked Section 7 of the Interpretation Act 1978, which deems service by post effective unless proven otherwise.
In the initial hearing and the subsequent appeal, the judiciary sided with the landlords, interpreting the contractual clauses as inclusive of documents like the EPC and gas safety certificate and affirming the applicability of the Interpretation Act.
However, the Court of Appeal’s recent decision to grant a second appeal opens the door to further deliberation on this matter.
Should the Court of Appeal rule in favour of the tenant, it could trigger significant repercussions for landlords, potentially nullifying numerous time-sensitive documents they serve. Landlords often rely on clauses deeming notices served upon posting, a practice that might be called into question.
Furthermore, if the Court establishes that legislation must explicitly allow for document service by post, it could complicate the serving of essential notices like section 21 or section 8 notices, with potential ramifications for proposed legislation such as the Renters (Reform) Bill.
Recognizing the magnitude of these potential implications, the NRLA intends to intervene in the case to advocate for the retention of postal service as a viable option for landlords. In the interim, landlords are advised to obtain tenant signatures upon document receipt to substantiate delivery.
In the unfolding legal saga of D’Aubigny v Khan, the balance of landlord-tenant relations and legal interpretations hangs in the balance, awaiting the Court of Appeal’s final verdict.