Service of Notices & Prescribed Information: Court of Appeal Hands Down Decision as to Whether Service by Post Invalidated a s.21 Notice (Khan and another v D’Aubigny (National Residential Landlords Association intervening) – 2025)

The Court of Appeal has handed down its decision in this appeal carrying industry-wide interest, determining whether landlords could serve notices and other prescribed information by post with reference to s.7 Interpretation Act 1978.

The background

Khan and another v D’Aubigny (National Residential Landlords Association intervening) [2025] concerned a premium residential flat in London let on an assured shorthold tenancy, under which the appellant was the tenant and the respondents were the landlord.

The landlords sent a s.21 notice under the Housing Act 1988, requiring possession of the property and stating that prescribed documents, such as the property’s gas safety record and the energy performance certificate, had been sent by post. The tenant claimed not to have received such documents. On appeal, the County Court found in favour of the landlord and concluded that s.7 of the Interpretation Act 1978 applied.

Read more on this decision in our earlier report

The tenant appealed to the Court of Appeal.

The decision

The Court of Appeal found in favour of the landlord, dismissing the tenant’s appeal.

The National Residential Landlords Association intervened in this case, owing to the potentially significant impact the decision would have on landlords and agents across the industry.

S.7 of the 1978 Act states that, where a document is required to be served by post, that service is deemed to be effective where the document is properly addressed, postage pre-paid and the document posted.

Despite dismissing the appeal overall, the Court of Appeal found that s.7 did not apply. S.7 applies only where a statute expressly authorises service of notices and documents by post. Regarding the statutory procedure for service of a s.21 notice, as in this case, the landlord was only required to “serve” or “give” the documents, and s.7 therefore did not apply to this provision.

However, the tenancy contained a provision which stated that notices “sent under or in connection with” the tenancy were validly served if sent by first class post. The documents in this case were sent in connection with the tenancy and fell within the definition of “notice”.

Further, the landlord was able to provide evidence of postage, upholding the common law presumption that a letter proved to be sent by first class post is received by the recipient. The Court of Appeal concluded that the tenant had not been able to rebut this presumption, and documentation constituting the “notice” was validly served.

Advice and action for landlords

Landlords will be pleased to note this important decision. Where tenants argue that documents such as EPCs and gas safety records have not been received, arguments can be successfully defeated provided that proof of postage is supplied. This cannot be rebutted by a tenant’s proof of non-receipt.

There remains an opportunity for tenants to rebut this presumption where a tenancy clause refers only to notices and documentation served “under” the tenancy agreement. Documents such as EPCs and gas safety records do not fall within this terminology. Tenants can rebut the presumption that documents sent in a pre-paid envelope by first class post are deemed served by evidencing that they did not receive the documents.

It is recommended that landlords and agents draft service of notice clauses broadly, expressly stating that documents required by law to be served on tenants in connection with, or under, tenancy agreements are deemed validly served where sent by first class post. Landlords are strongly advised to obtain, and retain with their records, evidence of postage.