Serving Notice to a Tenant
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.
The ideal way to serve notice to a tenant
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.
Using a ‘process server’ to serve notice to a tenant
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.
Serving a tenant notice by post
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.
Landlord strategies on serving notices
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.
Digitally serving notice to a tenant
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?
A letting agent serving notice to a tenant
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.