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Court of Appeal to Review Whether Service by Post of Prescribed Information Invalidated S.21 Notice (D’Aubigny v Khan & Anor – 2023)

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The Court of Appeal is currently considering an appeal which could carry significant impact for private landlords in respect of the service of notices and prescribed information. In this article, we review the case so far and the issues awaiting determination.

The background

In D’Aubigny v Khan & Anor [2023], the respondents are the landlords of a premium residential flat in London, of which the appellant is the tenant under an assured shorthold tenancy. The landlords issued a s.21 notice under the Housing Act 1988 requiring possession of the property, and stated that they had served the tenant with prescribed documents by post, namely the gas safety record, the energy performance certificate and the “How to rent, the checklist for renting in England” document published by the Department for communities and Local Government.

The tenant claimed that she had not received these documents and argued that, as her tenancy document did not contain a clause permitting service of this information by post, the burden was on the landlord to evidence that the information had been properly served such that they had come to her attention as per the decision in Wandsworth London Borough Council v Attwell [1995]. The landlord argued that the documents had been posted by recorded delivery and had not been returned.

At first instance, the deputy district judge found that documents had been properly served, referencing:

  1. 7 of the Interpretation Act 1978, which states that where a document is required to be served by post, then service is deemed to be effective where the document is properly addressed, postage pre-paid and the document posted; or in the alternative
  2. Clause 13(2)(a) of the tenancy agreement provided for deemed service of notices, and ‘notices’ included documents which were prerequisites to notices, such as those mentioned in this case.

The tenant appealed on grounds that the judge was wrong to conclude that s.7 applied, and had been wrong to find that cl. 13(2)(a) applied in respect of the service of documents. She argued that the documents did not constitute a notice, and were not mere prerequisites to a notice.

The decision

The County Court dismissed the appeal, finding in favour of the landlord.

It was found that s.7 did apply, referencing the Court of Appeal’s decision in Freetown Limited v Assethold Limited [2012]:

“I would accept that section 7 provides a general statutory code regarding sendings by post and that the statutory presumption is that it will apply unless a contrary intention appears.”

The tenancy agreement contained wording: “Any notice sent to the tenant under or in connection with this agreement shall be deemed to have been properly served if sent by first class post to the property.”

The County Court’s Circuit Judge stated:

“Notice is not defined by a capital letter which in my view, it should be if “notice” is to be confined…to notice per se and nothing else.”

“If “notice” is simply confined to a notice in abstract, then there would be no purpose for the words “or in connection with.”

The judge concluded objectively that the words included in the tenancy agreement encompass the three documents at issue. She agreed with the landlord that an objective interpretation of the clause includes any documents required to be served prior to a s.21 notice being deemed to be valid. It was the Circuit Judge’s view that a reasonable person would have understood what the parties meant by the wording contained in the agreement, and that it was common sense that this wording encompassed documents such as the three documents at issue in this claim.

Leave has been granted for the appellant to make an appeal in the Court of Appeal.

Advice and action for landlords

The potential impact of this decision is far-reaching for the industry. In particular, the application of s.7 of the Interpretation Act 1978 impacts widely on construction of the Housing Act 1988, and the common form of tenancy agreement wording may also be affected.

Landlords and managing agents are advised that the Court of Appeal’s decision will bind many claims, including service charge and ground rent recovery cases. J B Leitch will be watching this case closely and will report further on the Court of Appeal’s decision once handed down.

The County Court dismissed the appeal. The judge concluded that the words included in the tenancy agreement encompass the three documents at issue, agreeing with the landlord that the clause included any documents required to be served prior to a s.21 notice being deemed to be valid.

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