This case considered service of notices at common law, under contract and under the Interpretation Act 1978. It also considered what constitutes a "notice".
On 17 January 2025, the Court of Appeal ("CoA") handed down judgment in the case of Khan v D'Aubigny.
Mr and Mrs Khan ("the Khans") were landlords, Mrs D'Aubigny was their tenant. The Khans sought possession of their property let under an Assured Shorthold Tenancy ("AST").
A notice under section 21 of the Housing Act 1988 ("section 21 notice") was served and, upon expiry of the two-month notice period, possession proceedings commenced in the Wandsworth County Court after Ms D'Aubigny failed to provide vacant possession.
A section 21 notice cannot be validly served until various statutory requirements have been complied with. These are that tenants must first be given an Energy Performance Certificate, Gas Safety Record, How to Rent Guide and deposit prescribed information ("the statutory documents"). This is where we get into the heat of the dispute between the Khans and Mrs D'Aubigny.
Mrs D'Aubigny accepted receiving the section 21 notice, but disputed receiving the statutory documents ahead of it. The Khans' evidence was that their solicitors had posted them, and they were therefore 'given'. The Khans argued:
1. Section 7 Interpretation Act 1978 applies
Section 7 provides:
"Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Once proven that the documents had been posted and properly addressed, it fell to Mrs D'Aubigny to show she had not received them, and her bare denial of receipt was insufficient.
2. Reliance on clause in the tenancy agreement
Clause 13.2 of the AST provided:
"13.2 Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if:
13.2.1 sent by first class post to the Property; or
13.2.2 left at the Property; or
13.1.3 sent to the Tenant’s fax number or email address stated in the Parties clause."
3. A common law presumption of receipt of a properly addressed letter
At common law, a properly addressed and posted letter is presumed to have been received. Here, the Khans argued that this presumption had not been rebutted.
Mrs D'Aubigny disputed all three arguments, responding as follows:
- She denied that the Interpretation Act 1978 Act applied to the Housing Act 1988 as there is nothing in the 1988 Act that "required" or "authorised" service by post;
- The statutory documents were not a "notice" under the AST; and
- The operation of the common law does not assist.
At first instance, Deputy District Judge Davis held that the documents had been duly served, relying both on the deeming provision in section 7 Interpretation Act 1978, and in the alternative, on the deeming provision contained at clause 13.2 of the AST.
DDJ Davis made a possession order; Mrs D'Aubigny appealed the decision.
The Court of Appeal found in favour of the Khans in relation to points 2 and 3 above and dismissed Mrs D'Aubigny's appeal accordingly. The reasons given by the CoA were as follows:
- The Interpretation Act 1978 does not apply to notices under the Housing Act 1988, in this case a section 21 notice.
- The letter serving the statutory documents was a "notice" within the meaning of the AST.
- There is a common law presumption that a properly addressed letter will reach its intended destination, unless the recipient can prove to the contrary that it did not - something Mrs D'Aubigny failed to do here.
If nothing else, the takeaway from this case is the importance of ensuring that service provisions within a tenancy agreement are clear – they may be your saving grace.
