Are you being served? Landlords put on notice following Khan & Khan v D’Aubigny
By Sarah Salmon and Camille Richards
On 17 January 2025, the Court of Appeal handed down judgment in Khan & Khan v D’Aubigny [2025] EWCA Civ 11. The case concerned the service of “notices” in the context of section 21, Housing Act 1988 possession proceedings between private landlords and their tenants. Context is important here. Whilst the case is likely to have consequences for private landlords and non-local authority private registered providers of social housing, local authority landlords are in a different position which is explored below. In Wales, the landscape of housing has changed and the service of documents is dealt with under the Renting Homes (Wales) Act 2016 and in the contracts themselves. Landlords in Wales should still be aware, however, of the general principles this case considered.
Background
The tenancy agreement between the parties to the appeal contained a clause which set out, amongst other things, that any “notice” sent “under or in connection with this agreement” (whether served on the landlord or the tenant) shall be deemed to have been properly served if sent by first class post. There was also a subpart to that clause about when such notices would be deemed to have been received.
It was the tenant’s case at first instance that her landlord had failed to serve her with an energy performance certificate (“EPC”), gas safety record (“GSR”) or How to Rent guide. The landlords’ case was that these documents had been sent via first class post and recorded delivery. The landlords relied upon the relevant clause in the tenancy agreement and, in alternative, on section 7, Interpretation Act 1978.
The court found for the landlords at first instance. DDJ Davis took the view that section 7 of the Interpretation Act 1978 applied and, if he was wrong about that, such documents fell within the term “notice” in the tenancy agreement and had been served by post under the relevant clause. Her Honour Judge Baucher dismissed the tenant’s first appeal on both grounds.
The tenant appealed further to the Court of Appeal. As set out in the judgment of Nugee LJ at [1] the appeal “raises a point of some general importance on the construction of s.7 of the Interpretation Act 1978”. The Court needed to consider whether section 7 applies where a statutory provision requires a document to be given or provided to someone, but does not expressly state that it may or must be done by post.
Section 7, Interpretation Act 1978
Under section 7 of the Interpretation Act 1978:
“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.”
In Nottingham City Council v Tyas [2013] UKUT 492 (LC) at [30] and [34], it was held that section 7 of the Interpretation Act 1978 required that notice be assumed to be received, unless the contrary was proved and it is for the tribunal to decide whether it is satisfied that the notice was posted. If the tribunal was so satisfied, it will be for the intended recipient to establish it was not received.
The Court of Appeal’s decision
Whilst the Court – Nugee LJ giving the judgment with which Newey and Cobb LJJ agreed – upheld the decision based upon the clause in the tenancy agreement, it was held that section 7 of the Interpretation Act 1978 did not apply. Why? Because in order for section 7 to be engaged, the statutory provisions that require or authorise any document to be served must refer to service by post. Citing three earlier cases which considered the applicability of section 7 (Postermobile plc v Kensington and Chelsea Royal London Borough Council (2000) 80 P&CR 524; Moviestar Trade Mark [2005] RPC 26; and London Borough of Southwark v Akhtar [2017] UKUT 0150 (LC)), the Court held that it is not enough for the statutory provision to say “give” or “send” or use “any other expression” if it does not also say “by post”.
The statutory provisions dealing with EPCs, GSRs and How to Rent guides do not set out expressly that those documents may or must be served by post.
The landlords were saved, however, by the clause in the tenancy agreement on serving notices. The Court held that “notices” in such a clause – which not only operated for the benefit of the landlords but also the tenant – included EPCs, GSRs and How to Rent guides. The Court declined to give a comprehensive definition but said at [57] that the concept of a notice does not depend on the word itself being used, and is not confined to notices required by statute. It can include a document which conveys information as well as one which exercises a right: [58]. In general terms, “a notice is simply something that notifies the recipient of something”: at [59]. Caveating that general proposition slightly, two things were added:
- a) “a notice” is generally to be understood as referring to a notice in writing; and,
- b) “the word “notice” has an air of formality about it”.
Concluding, Nugee LJ set out at [59]:
“So we can perhaps say that a notice is a formal written notification of something. By that I do not mean to suggest that a notice has to be in any particular form or use any formal language: a text from a tenant to a landlord complaining that the boiler has stopped working and the roof leaks could quite reasonably be regarded as the tenant giving the landlord a notice of disrepair for the purpose of the landlord’s repairing covenant. What I mean is that the notification has to be for some formal purpose; and in the case of a landlord and a tenant, I think that means in connection with their relationship of landlord and tenant” (emphasis added).
Comment
This judgment is of significant importance to all landlords letting, or intending to let, property under an assured shorthold tenancy (“AST”) that is governed by the Housing Act 1988.
Landlords entering into new AST agreements should be careful to ensure that those agreements are drafted to adequately cover the service of notices to tenants by the method preferred by the parties. Landlords with ASTs already in place will need to carefully consider their terms and conditions of tenancy when serving a notice.
Those seeking to recover possession by serving a notice under section 21 of the Housing Act 1988 will not be able to rely on section 7 of the Interpretation Act 1978 to confirm that they have complied with the requirement to first provide the tenant with the EPC, GSR and How to Rent guide in sending those documents by post.
Given the discussion and decision on section 7 of the Interpretation Act 1978, the judgment could also be significant for housing associations and local authorities. There are, however, other statutory provisions which may be of assistance in certain circumstances.
First, readers will be aware, as it often comes up in possession claims where service is in issue, that section 196 of the Law Property Act 1925 may sometimes assist. Under section 196 of the Law of Property Act 1925:
“(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.
(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of Part 3 of the Postal Services Act 2011) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.
(5) The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.” (emphasis added)
The definition of “instrument” does not include a statute: section 205(1)(iii), Law of Property Act 1925. It would however include, for example, a lease and an “Acceptance of Offer” document signed on accepting a tenancy both of which have been held to constitute an “instrument affecting property” within the terms of section 196(5): Wandsworth LBC v Attwell (1995) 27 HLR 536. But section 196 has to be an express provision incorporated into such an instrument; section 196 cannot be implied: see Attwell at p.541.
Further, section 196 of the Law of Property Act 1925 only applies to notices “required” to be served, rather than notices “required or authorised” to be served: Attwell at p.541.
Section 196 of the Law of Property Act 1925 can therefore be relied on for valid service by post in some circumstances, but only if the instrument in question expressly incorporates section 196 with reference to notices that are required, not merely permitted, to be served under that instrument.
Secondly, local authorities can find further assistance in section 233 of the Local Government Act 1972 (“LGA 1972”), which makes provision for service by local authorities of notices, orders or other documents “required or authorised by or under any enactment”: s.233(1).
Subject to exceptions, s.233(2) provides:
“(2) Any such document may be given to or served on the person in question either by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address”.
Whilst it has been held that the provisions of section 233, LGA 1972 do not apply to a common law notice to quit because it is not a document required to be given “by or under any enactment”: Enfield LBC v Devonish (1997) 29 H.L.R. 691 at p.698; [1996] E.G. 194 (C.S.) CA (Civ Div), the case of Birmingham City Council v Bravington [2023] EWCA Civ 308; [2023] 3 WLR 267 discussed its application in a case concerning the serving of notices prior to possession proceedings under section 83ZA of the Housing Act 1985. The court held (amongst other things):
- a) Section 233, is not confined to notices served by a local authority when it is performing a public law function. Subject to exceptions, section 233 applies to any notice, order or other document which an authority gives to or serves on any person where that document is required or authorised by or under any enactment. As such, section 233 applied to the service of a notice under s.83ZA, Housing Act 1985: at [19]–[20], [43], [45].
- b) Section 233 provides local authorities with various ways of effecting service which will be deemed to be valid if the authority complies with any of them: at [41], [43], [45].
More recently, Newcastle City Council v Abdallah [2024] UKUT 140 (LC), [2024] HLR 332 considered section 233 of the LGA 1972 in the context of enforcement under Part 3 of the Housing Act 2004 (selective licensing). Martin Rodger KC, Deputy Chamber President confirmed in the case at [26] that section 7 of the Interpretation Act 1978 “applies to notices given by local authorities, because section 233(2), 1972 Act, specifically authorises service by post. It also applies to notices and other documents served under the 1925 Act or any instrument affecting property (at least in relation to documents required by statute), because section 196(4) and (5) authorise service of those by post.”
