I was chatting to the very helpful Ross at Fidler and Pepper about the implications of the affect of the recent rulings on the section 21 notice.
I am just about to serve one of my tenants with the notice and have always assumed that the courts require that legal documents have to be served by recorded or registered post. Apparently, not so. It appears that a landlord opens themselves up to the risk of a streetwise tenant refusing to sign for the notice this way.
Paradoxically, by just going for a straightforward 1st class post with proof of posting has, in the recent experience of Fidler and Pepper, not given rise to any objections from the courts.
There are a whole range of ways that you can handle the service of legal documents, and it will probably depend on your circumstances as to which one you opt for. There is clearly an ideal, and the further a landlord strays away from this ideal; the greater the risk that the Judge will throw out the notice on the basis that it was not legally served on the tenant.
So let’s start with the ideal.
To personally service by hand is always best. Nothing can beat service placed directly to the tenant’s hand. In an ideal world a landlord should get the tenant to sign to say they have received the notice. If they refuse to take the notice then you can throw it to their feet. This personal service by hand is always best. A tenant will then struggle to argue that they have not received it (I’m sure some will try!).
In my case I’m asking one of my ex- neighbours who lives above the rental property to serve it for me. This is even better in that providing they are not a close friend or family member, you have an impartial witness should the case go to court. If you do serve the document in person it would be advisable to have an impartial witness with you to verify this should the tenant challenge your claim.
It is possible to use a professional to serve your notice. They are called process servers and with a national company such as Davis Coleman they will be able to do it in most parts of England and Wales for £75 plus VAT. The advantage of using a professional is that it will be done correctly and the courts should believe them.
As I’ve already mentioned serving your notice on your tenant by post is not the best option, but unless you have a friend or are prepared to shell out nearly a hundred quid on paying a process server it’s cheaper and more convenient especially for absent landlords such as myself.
Proving the fact to a Judge that you have actually served the notice is key. Many lawyers would recommend that you send your notice by recorded delivery. In this way if the tenant signs for it then you have legal proof that they have received it. The glitch with this approach, as I've already mentioned, is that some more ‘streetwise’ tenants will be expecting it, and refuse to sign for anything. In this case the notice remains undelivered.
Another tactic some tenants sometimes use is to get a ‘friend’ to sign for it and then claim that they did not pass the notice on to them. This is why it may be better to take a risk, with the 'landlord friendly' nature of the Judge, and send it with proof of postage, but not registered or recorded.
In this respect, it will mean the tenant is unable to argue or provide evidence that they did NOT receive the notice. The courts will often proceed with a receipt from the Post Office as proof of delivery.
There are a number of strategies that landlords employ to try and 'out fox' the ‘notice evading tenant’. Some landlords employ the technique of sending the notice from two different post offices. The reasoning for this is that it would be very unlikely that both notices would have gone astray. This takes away any doubt a judge might have of the notice getting lost in the post.
In so many ways and procedures the law lags behind the mechanisms of modern society. It is perfectly possible to serve the notice using digital means such as email or fax, but again, it all comes down to proving to the court that the notices have been served. If the tenant acknowledges receipt then this is often taken as the notice being served, however, just as in the case of the postal service, how many tenants will actually do this?
It is perfectly legal and possible for you to get your letting agent to serve the notice for you providing it is made clear on the notice. The same principles apply to the letting agent as to the landlord, so see the above guidance.
FORMS FOR LETTING PROPERTY
FINANCE AND TAX ON RENTAL PROPERTY
RENTAL PROPERTY REGULATIONS
FURNITURE AND FURNISHINGS
HMO (HOUSE IN MULTIPLE OCCUPATION)
TENANCY DEPOSIT SCHEME (TDS)
ENERGY PERFORMANCE CERTIFICATES
COMMUNAL HEATING REGULATIONS
INVESTING IN BTL PROPERTY
A GUIDE FOR NEW LANDLORDS
WHICH PERIOD OF PROPERTY
BUYING OFF PLAN
KNOWING THE RISKS
PROPERTY INVESTMENT CLUBS
MANAGING RENTAL PROPERTY
GIVING NOTICE TO LEAVE
NON - PAYMENT OF RENT
GETTING YOUR MONEY BACK
THE TENANT WONT MOVE OUT
THE TENANT DOES A BUNK
RAISING THE RENT
REDUCING THE RENT
REPAYING THE TENANCY DEPOSIT
FAIR WEAR AND TEAR
MOULD AND CONDENSATION
MAINTENANCE OF A RENTAL PROPERTY
LETTING RENTAL PROPERTY
TEN STEPS TO LETTING
FINDING GOOD TENANTS
ONLINE LETTING AGENTS
WRITING A LETTING ADVERT
FURNISHING A PROPERTY
LETTING AGENT OR DIY
SELECTING A LETTING AGENT
TENANTS ON BENEFITS
LETTING TO STUDENTS
PREPARING AN INVENTORY
RIGHT TO RENT GUIDANCE
TERMS OF A TENANCY
LENGTH OF A TENANCY
RESPONSIBILITY FOR REPAIR AND MAINTENANCE
TENANCIES IN SCOTLAND
LETTING TO TENANTS WITH PETS
LANDLORDS' WATER RESPONSIBILITIES
LEGISLATION OF LETTING PROPERTY
TENANCY DEPOSIT DISPUTES
ALTERNATIVE DISPUTE RESOLUTION
HOUSING ACT APPEAL DISPUTES
THE LANDS TRIBUNAL
RIGHTS OF LIGHT APPLICATION
APPEALS FROM LEASEHOLD VALUATION TRIBUNALS (LVT's)
POSSESSION - SECTION 8 NOTICE
POSSESSION - SECTION 21 NOTICE
SECTION 21 TIMETABLE AND PROCESS
GROUNDS FOR POSSESSION
PREPARING FOR A POSSESSION HEARING
HARASSMENT BY LANDLORDS
RENT DISPUTES BETWEEN LANDLORD & TENANT
FAIR RENT (RAC)
MARKET RENT UNDER AST
LEASEHOLD VALUATION TRIBUNALS
MODIFICATION OF RESTRICTIVE COVENANTS