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Hurrying to catch the final post before Christmas reminded me of the Royal Mail’s potential impact on landlords serving documents on tenants, typically section 21 and section 8 notices.
Why is servicing documents properly so crucial?
The first thing to remember is that whatever the scenario, it’s exceedingly rare for the Court to dispense with service requirements. And given a tenant’s restricted ability to ‘defend’ a section 21 possession claim, one of the very few options open to them is to challenge the proceedings based on defective service.
Serving section 21 notice
The starting point in serving a section 21 or a section 8 notice is to consider the terms of the tenancy agreement. Many include a provision explaining how notices should be served, and you should ensure you follow precisely what you have contractually agreed to do. If the tenancy agreement is silent on service, you must consider any applicable statutory provisions.
Although other pieces of property-related legislation contain specific references to service, the Housing Act 1988 is not among them. So, the rule is that to serve a section 21 notice, you must be able to demonstrate that it came to the tenant’s attention. If challenged by the tenant, the Court considers the evidence on the ‘balance of probabilities’, i.e. whether it’s more likely than not.
Practical steps in serving notice
As ‘service’ occurs when the notice comes to the tenant’s attention, perfect service would be to hand the notice to the tenant in person – but be careful not to cause intimidation. The next best option is hand delivery through the letterbox of the rental property. Keep a note of the exact time and date of delivery. Consider using a process server if the property is some distance away, or your tenant is hostile. It can prove a sound investment when compared to the cost of proceedings being dismissed for defective service.
If you serve by special delivery post, remember that your tenant needs to accept and sign for the letter. So, if postal service is unavoidable, send a further copy simultaneously by standard first class post, noting the exact time, date and location of posting.
Allow plenty of time for service
It’s amazing how often landlords put themselves under considerable time pressure. You might be fortunate if you allow only two days for service, but why take that risk? Allowing several days – or longer – of wiggle room is always sensible in minimising the prospect of arguments over short notice.
Don’t forget weekends, bank holidays etc
When calculating a notice period, allow any additional time required for non-business days. For example, some tenancy agreements refer to service on ‘business days,’ and although there may be a postal delivery on Saturdays, it’s not a business day.