The National Residential Landlords Association (NRLA) has applied to intervene in a pivotal legal appeal concerning the validity of serving essential rental documents by post.
Last month, the NRLA reported that a second appeal had been granted in the case of D’Aubigny v Khan. The initial hearing featured a tenant challenging the validity of a Section 21 notice on the grounds that vital documents – including the property’s gas safety certificate, the How to Rent guide, deposit information, and energy performance certificate (EPC) – cannot be served by post.
The NRLA aims to ensure that postal service remains a viable option for landlords and plans to submit evidence supporting the legality of this practice.
Case Background
Ms. D’Aubigny was a tenant under an assured shorthold tenancy when her landlords, the Khans, issued a Section 21 notice to regain possession of the property. The possession claim was contested by D’Aubigny, who argued that she never received the EPC, gas safety certificate, or How to Rent guide, which would render the Section 21 notice invalid.
D’Aubigny maintained that the tenancy agreement did not explicitly state that these documents could be served by post, mentioning only ‘notices’. Consequently, the landlords needed to provide evidence of receipt by the tenant, not just proof of postage.
She also cited Section 7 of the Interpretation Act 1978, arguing it did not apply as the relevant legislation does not specifically authorize these documents to be served by post.
Landlords’ Position
The Khans contended that they served the documents via recorded delivery, and their agreement included a clause deeming notices served by post to the property as received by the tenant. They argued that Section 7 of the Interpretation Act 1978 does apply, asserting that documents are considered served upon proper addressing, pre-paying, and posting, unless proven otherwise.
The initial ruling and first appeal favoured the landlords, interpreting that the clauses allowing service by post covered the EPC and gas safety certificate. Judges also affirmed the applicability of the Interpretation Act, permitting landlords to serve documents by post unless explicitly prohibited by legislation.
Despite this, the Court of Appeal has now allowed a second appeal.
NRLA’s Perspective
Most tenancy agreements include a clause deeming notices served when sent or left at the property, which many landlords rely on for serving required documents. A ruling in favor of the tenant could invalidate numerous time-sensitive documents already served by landlords.
The NRLA will argue that the notice clause in question is standard practice and critical for landlords. A decision requiring explicit legislative mention for postal service could prevent landlords from using post for essential documents like Section 21 or Section 8 notices.
Next Steps
The NRLA has sought formal permission to intervene in the appeal and submit additional evidence. The association advises landlords to obtain tenant signatures upon receipt of documents to ensure proof of delivery.
The case’s outcome will significantly impact landlords’ document-serving practices. The NRLA will continue to provide updates on the appeal and its intervention.
For ongoing developments, landlords are encouraged to follow NRLA communications and verify tenant receipt of all critical documents.