Landlords and agents should by now be aware of just how important it is to follow the letter of the law when serving Section 8 or Section 21 Notices.
Courts have set aside orders for possession on the basis that the Prescribed Information previously given to the tenant did not contain the landlord's name and address, giving instead the agent's name and address as the holder of the deposit, even though that deposit was entirely properly protected.
Timing of service is another factor that many landlords do not consider when issuing section 8 and Section 21 notices. One common reason why a notice is deemed invalid is because the sender did not understand the rules that dictate when the document is ‘deemed’ to have been served and do not allow a few more days for service to be affected.
It is always a good idea to give yourself some ‘wriggle room’ so that the notice period required by the law has been provided to the tenant. Equally important is to bear in mind that the rules for service of Section 8 and Section 21 notices are different to the rules covering the service of a claim form (what used to be called a writ or summons).
Any document, other than a claim form, served within the United Kingdom in accordance with these rules or any relevant practice direction is deemed to be served on the days shown below. Note too the reference to business days.
The deemed date of service of documents sent via first class post is the second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; and if it is not a business day then it will be the next business day after that day.
So even if your documents were posted on Thursday and actually physically arrived on Friday, they will not ‘deemed to be served’ until the following Monday.
The same applies if you have a postal provider that collects the document and guarantees next day delivery.
If you leave a document at a permitted address, you must do so before 4.30 for it to be deemed to have been delivered on that day, otherwise it will not be considered served until the next business day after the day it was put through the letterbox.
The same is true if you fax or email the document and also if the document is served personally. This must be before 4.30 p.m.on a business day, for service to be regarded as having been affected on that day. Otherwise, after 4.30 pm service will be deemed to be the next business day after that day. Eamonn Hogan, who heads up Access Legal’s landlord & tenant law team, cites a specific and recent example:
“We had a case come in just this week where the landlord was not allowed to serve notice before 10th December 2014. There was a specific term in the contract stating the notice must not be served before that date. The landlord’s agent thought they were being terribly efficient by hand delivering it the day before on 9th December 2014 at 4pm. As a result, the notice was invalid. It would have to be delivered after 4.30 to be deemed to have been served on the following day, as specified in the contract. If the agent had waited 31 minutes before hand delivering the document it would have been valid.”
There are special rules regarding the sending of documents by fax and email however and this should only be done after you have taken independent legal advice.
A couple of day’s difference may sound trivial, but could prove crucial. Even if you can show a letter arrived the next day, within the timeframe legally specified for the service of such notices, it will not be deemed served until the dates as above and that could mean the difference between the tenant successfully challenging the notice and you gaining possession of your property.