Case Law Update: Section 21 Service of Prescribed Documents

D’Aubigny v Khan & Anor

(Central London County Court, 1 December 2023)

Background

Ms D’Aubigny (‘the Tenant’) was the assured shorthold tenant of the Khans (‘the Landlord’). On 30 March 2023, the Landlord obtained a possession order on the mandatory ground of a notice under section 21 of the Housing Act 1988.

It was common ground that the Landlord had to serve the Tenant with the following documents prior to serving the notice: the gas safety record, the energy performance certificate and the document entitled “How to rent, the checklist for renting in England”.

The Landord said they had served the required documents by post however the Tenant disputed service on the basis that she did not receive them and argued that in the absence of a contractual clause permitting service of the documents by post, the Landlord had to prove that the documents had come to her attention as per Wandsworth London Borough Council v Attwell [1995] 27 HLR 536.

The Landlord argued further, that in any event, section 7 of the Interpretation Act 1973 applied which 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.”

The Initial Hearing

The Judge at the initial hearing found that the documents were properly served for the following reasons: that section 7 of the Interpretation Act 1978 applied to service of the documents and further, in the alternative, clause 13(2)(a) of the tenancy agreement provided for deemed service of notices and the word “notice” included documents that were prerequisites to the notices.

The First Appeal

At the first appeal, HHJ Baucher agreed and was not satisfied on balance of probabilities that the Tenant did not receive the documents.  HHJB was satisfied on the basis of section 7 (above) and the facts of the case, that the documents had been deemed served, the section 21 notice was valid and the Landlord was entitled to possession. In addition, HHJB was satisfied that the Judge at the initial hearing was entitled to find that the clause of the tenancy agreement encompassed the prerequisite documents. The appeal was dismissed.

What next?

It is now for the Court of Appeal to rule on whether it is acceptable for vital documentation to be served by post. If the Court of Appeal finds in favour of the Tenant, there could be significant implications for landlords.