Service clauses and the Interpretation Act 1978 – considerations for landlords

A recent county court judgment appeal (D’Aubigny v Khan & Anor. Central London County Court, 1 December 2023) has highlighted the importance of carefully drafted tenancy agreements. Unclear clauses about the service of documents on tenants can lead to difficulties when seeking possession of your property.

The Facts of the Case

Ms D’Aubigny was the tenant and the appellant in this case. The Khans were the landlords and the respondent. The landlords brought a claim for possession under section 21 Housing Act 1988 (section 21). Ms D’Aubigny challenged the validity of the section 21 notice and claimed she had not received the gas safety record, the energy performance certificate, and the How to Rent guide. The landlords stated that they had served these documents on Ms D’Aubigny by post. Ms D’Aubigny argued that not only were these documents not received, but there was no clause in the tenancy agreement that permitted the service of these documents by post.

The landlords’ case was that there was a clause in the tenancy agreement that allowed service by post and that in any event, section 7 Interpretation Act 1978 (“the Act”) applied, which permitted service by post.

The Clause in Question

The clause in the tenancy agreement stated:

“Any notice sent to the tenant under or in connection with this agreement shall be deemed to have been properly served if sent by first class post to the property.”

The meaning of the word ‘notice’ was disputed and Ms D’Aubigny claimed that the documents that were allegedly served by post were not a ‘notice’. The judge at first instance had held that this was incorrect the word ‘notice’ included documents that were required to be served prior to any notices, including the documents in question. The judge also held that nonetheless, section 7 of the Act applied. These points were appealed by Ms D’Aubigny.

The Interpretation Act

Section 7 of the Act states:

“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.”

This section is relevant because the documents in question are not expressly authorised or required to be served by post in legislation. There is also no reference in the Housing Act 1988 to serving section 8, section 13 or section 21 notices by post. The appeal judge had to decide whether the Act could be applied to the documents in question. If the Act did apply, then if a landlord served the documents by post, they would benefit from a presumption by the court that the documents were served, unless the tenant can prove otherwise.

Outcome of the Appeal

On appeal, the judge found that section 7 of the Act applied to the gas safety record, the energy performance certificate and the How to Rent guide. This is in line with a previous court case (Freetown Limited v Assethold Limited (2012) EWCA Civ 1657) which stated that section 7 of the Act generally applies to statutory provisions which authorise or require service of notices which affect land.

The appeal judge also held that as the term ‘notice’ in the service clause was not defined in the tenancy agreement, the documents in question could be perceived to be included within the term when the entire clause was read as a whole. The appeal was therefore dismissed by the judge.

Ms D’Aubigny has made a further appeal of this decision, which will now be decided by the Court of Appeal. This means that despite the previous decisions, there is uncertainty for the future of vague service clauses in tenancy agreements.

Considerations for Landlords

As this case is being appealed to the Court of Appeal, there is no certainty that the clause in the tenancy agreement will be deemed to include the documents in question or that section 7 of the Act will apply to them in any event. We will need to wait to see what the outcome is of the appeal.

In the meantime, the best course of action is for landlords to take more care when drafting tenancy agreements or reusing the same terms from old tenancy agreements. It is extremely important to have well drafted clauses and clarity within the tenancy agreement. These well drafted clauses should always include a clause about the service of documents and notices on tenants. If the service of documents is clearly dealt with in the tenancy agreement, landlords will not need to try and rely on section 7 of the Act and their cases should not be affected by the Court of Appeal decision in Ms D’Aubigny’s second appeal.