Serving notices on your Tenant: - getting it right first time, every time
This week in Landlords' Surgery we look at the important issue of how to serve a notice on your Tenant. The main type of notices that need to be served on a Tenant are usually Notices Requiring Possession. These notices tend be called "Section 8" or "Section 21" notices in reference to the relevant sections within the Housing Act 1988. This blog post does not deal with the circumstances in which a specific notice should be used but rather how to validly serve the notice.Relevant Legislation and Case Law
For any practitioners reading this blog post the relevant primary legislation are Sections 7, 8 and 21 of the Housing Act 1988. The key case law to be considered is: -
Wandsworth London Borough Council v Attwell (1995) 27 HLR 536
The main principle in Wandsworth is that the notice needs to be served in a manner designed to ensure it comes to the attention of the tenant.
The starting point is the Tenancy Agreement
It is a common misconception that a Landlord is entitled to simply post the notice by 1st class post, or even push it through the letterbox. The Tenancy Agreement needs to specify a method of service. Usually the agreement will state that good service is when the notice is served by Recorded Delivery (first class) pursuant to Section 196 of the Law of Property Act 1925. If this clause is not in your agreement then don't even think of attempting to serve the notice by post. In any event always use either Recorded Delivery or Special Delivery.
Service by the above method should be considered the bare minimum and only used as a last resort.
The "gold standard" is personal service on the Tenant
If you want to ensure that service of your notice is "bomb (or judge) proof" then personal service (i.e. physically handing the notice to the Tenant) is by far the best method. This requires a degree of co-operation and/or "luck". A Tenant (anticipating a notice) may simply not answer the door! I always suggest attending the property on a Sunday morning (between 9am and 11am) or a Monday evening (between 8pm and 9pm).
If you have to post the notice through the letterbox
Next best method is to post the notice through the letterbox. If you do this then always take photographs. The notice should be held against the front door with the number showing when the photograph is taken. Make a note of the date and time as well as any distinctive features about the property or the vicinity. It is always best to try and take a witness with you when serving a notice; however, it is understood that this may not always be possible.
Certificate of Service is a must
When the time comes to commence Court proceedings then make sure you file a Certificate of Service. This is an absolute must. As well as this I will also write a quick Witness Statement explaining how the notice was served. You can find a Certificate of Service here: -
I suggest keeping a copy for your own records.
The consequences of getting it wrong
Get it wrong and you will almost certainly lose your case! The Court has very limited discretion to dispense with the service of notices (no discretion at all for "Section 21" and rent arrears cases relying on mandatory ground 8). It is all to easy for a Tenant to file a Defence stating that they "never received the notice". Once that Defence is filed the Court is almost certainly adjourning (or even dismissing) your case unless you can prove that the notice was served. Don't cut corners! Making a mistake with the notice can mean that the Tenant remains in possession of the property for anything approaching a year, while you try and sort the mess out!
COMING SOON: - how to regain possession of your property if a Tenant is in breach of their agreement!
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