Legal Q&A: problems in the service of notices
I rent premises to a company on a yearly tenancy, which commenced on 24 June 1999 and is not protected by the Landlord and Tenant Act 1954. The lease says any notice may be sent to the tenant at a specified address or any other address notified to me in writing. I sent notice to quit to the company, expiring on 23 June 2018, by post to the address in the lease particulars on 20 December 2017. I was informed two weeks later that the company’s address had changed at the beginning of December. Is my notice valid?
Yes: your tenant only gave you notice of the change of its address after you had given the tenant notice to quit.
In order to terminate the tenancy, you need to give half a year’s notice to expire on the last day of the tenancy.
In Grimes v Trustees of the Essex Farmers and Union Hunt  EWCA Civ 361;  PLSCS 109, the Court of Appeal considered a clause that provided for service on a tenant at a specified address or any other address of which the landlord has been notified. The court held that where the tenant had notified the landlord of a new address, that address must have been intended to replace the address given in the lease. However, a notice to quit could be validly served at the old address at any time before the tenant notified the landlord of a different address, even if the tenant no longer lived there.
Although it is a question of construction of the particular clause, the clause in your lease seems similar to Grimes: once the company has notified you in writing of its new address, that address will replace the one in the lease. However, you were able to give notice at the old address on 20 December given your tenant had not informed you of the change. In Grimes, the court stated that if the tenant moves from the address in the lease without notifying the landlord of his new address, he must be taken to accept the risk that notices served at the specified address will not come to his attention.
It is worth noting that, in order for parties to agree to exclude sections 24 to 28 of the 1954 Act, the tenancy must be for a “term of years certain”: Newham London Borough Council v Thomas-Van Staden  EWCA Civ 1414. As your lease is a periodic tenancy, you cannot have contracted out the application of the 1954 Act. There are many other reasons why a tenancy may not have security of tenure under the 1954 Act and it is assumed that there is a factor that means the lease is not protected by the 1954 Act.
As landlord, to ensure we did not lose the right to recover the costs of works through the service charge, we served notices on tenants by first-class post under section 20B of the Landlord and Tenant Act 1985. The notices were served well within 18 months of the costs of the works being incurred. One tenant now argues that she never received a notice and is refusing to pay the service charge. The tenant’s lease states that section 196 of the Law of Property Act 1925 applies to the service of notices under the lease. Was the notice validly served?
Following a recent case in the Upper Tribunal (UT), it is likely that service of the notice was valid provided you can prove postage.
A section 20B notice validly served within 18 months of costs being incurred will allow a landlord to issue demands for those costs outside of that 18-month period. Section 196 of the Law of Property Act 1925 provides that certain notices are deemed to have been served if sent by registered post. However, section 7 of the Interpretation Act 1978 goes further and provides that certain notices are deemed served if sent by ordinary post unless the contrary is proved – effectively amending section 196 in accordance with modern business practices.
In Southwark London Borough Council v Akhtar  UKUT 150 (LC);  PLSCS 95, the UT considered whether service of a section 20B notice by ordinary post was valid when the lease contained a provision that section 196 applied to notices served “under the lease”. The UT found that despite no specific reference to section 20B in the lease, “under” was wide enough to mean “relating to”. The purpose of the notice was related to the lease as its purpose was to ensure recovery of the service charge and section 196 therefore applied. However, to decide whether ordinary post was sufficient, the UT then had to consider whether section 7 of the Interpretation Act 1978 applied. It determined that, in the absence of any proviso to the contrary, as section 196 applied, so did section 7 and therefore, as long as the landlord could prove that the notice was properly addressed, pre-paid and posted, there was a presumption of service.
The clause in your case sounds similar to that in Akhtar. Assuming you are able to prove pre-paid postage to the correct address, there will be a presumption of service, unless the tenant can prove the contrary, which requires more than a bare denial of receipt.
News & Insights
Art Law Newsletter - April 2019
Welcome to the latest edition of our Art Law Newsletter.
Government proposes sweeping changes to tenant evictions
New consultation on proposals to end “no fault’ evictions under Section 21 of the 1988 Housing Act.