To Deem or Not to Deem (Service)

The long-awaited Renters’ Rights Bill proposes to bring an end to ‘no fault evictions’ arising from section 21 of the Housing Act 1988 in the near future. The draft Bill is currently being considered by the House of Lords.?

In the meantime, section 21 possession cases continue to make their way through the courts. The Court of Appeal’s decision in D’Aubigny v Khan & Anor (2025) EWCA Civ 11 provides commentary which will be useful more widely when we need to consider whether or not a document has been properly served in a landlord and tenant matter. ??

The Facts of The Case

In this case, the tenant (Mrs D’Aubigny) had been served with a section 21 notice by her landlords (the Khans). It was not disputed that the notice itself had been received.

Where a tenancy has been granted or renewed on or after 1st October 2015, ‘landlords cannot serve a s. 21 notice unless they have complied with statutory requirements (i) to ensure that a valid Energy Performance Certificate "has been given" to the tenant; (ii) to ensure that a copy of a Gas Safety Record "is given" to the tenant; and (iii) to "give" the tenant the current version of the "How to Rent Guide". These three items are hereafter referred to as ‘the Documents’.

The landlord’s solicitors stated that they had served the tenant with the Documents via first class post and recorded delivery to the property address, prior to serving the section 21 notice. The tenant alleged that she had never received them.

At first instance in the County Court, the Judge had ruled that the Documents had been properly served on the tenant, and therefore that the landlord was entitled to possession.

The County Court Judge placed reliance on the deeming provision contained in Section 7 of the Interpretation Act 1978, and in the alternative, on a deeming provision contained in the tenancy agreement, which said as follows:

‘any notice sent to the tenant under or in connection with this agreement shall be deemed to be properly served if sent by first class post to the property’… ‘it shall be deemed to have been received… if sent by first-class post, on the second Working Day after posting’. ?

Section 7 of the Interpretation Act 1978 provides that:

‘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’.

An initial appeal by the tenant was dismissed. The matter was then escalated to the Court of Appeal, who have recently handed down their judgment.

The Decision

The first question considered by the Court of Appeal was whether a legislative provision needs to expressly say that a document ‘must, or may, be served by post’ in order for that provision to be covered by Section 7.?

As the Court noted, ‘the statutory provisions which require [the Documents] to be given to a tenant do not say anything about how that is to be done (other than, in the case of [a] How to Rent [Guide], saying that it can be provided in hard copy or, in appropriate circumstances, by e-mail)’. While service by post was permitted, it was not expressly ‘authorised’ or required.

The Court held that Section 7 did not apply, and therefore Section 7 could not be relied upon to prove that the Documents had been deemed served on the tenant. ?

The Court of Appeal then turned to the second question, which was whether the deeming provision contained in the tenancy agreement could apply instead.?

Lord Justice Nugee commented that ‘I consider that a notice would include anything in writing by which the [landlord] or the [tenant] formally notified the other of something in their capacity as landlords and tenant respectively’. The letter which was sent to the tenant enclosing the Documents was deemed to be a ‘notice’ for the purposes of the tenancy agreement, as the Documents were given for a legal purpose and they affected the parties’ legal rights to possession. ?

The Court held that the Documents had been deemed served in accordance with the clause in the tenancy, which did not contain any provision ‘enabling it to be rebutted by proof to the contrary’.

The tenant’s appeal was dismissed on that basis, and therefore it was not necessary for the Court to consider the third question (namely what the position would have been in the absence of deemed service).

Lord Justice Nugee did however engage in some discussion of the point, based on previous judicial comments in other cases. It was noted that ‘[the Judge] did not consider that it was necessary for the [tenant] to lead positive evidence as to what had happened to the letter. All…. he needs to prove is that he did not receive it’.

The Court also quoted a 2011 decision which said: ‘if the addressee of the letter proves on the balance of probability that the letter was not served upon him then that matter has been proved… of course it is not enough simply to assert that someone did not receive the letter; the court will consider all the evidence and make its findings by reference to the facts which are established including issues as to the credibility of witnesses’.

Implications

This decision highlights the importance of exercising caution when serving documents on a tenant.

Questions we might consider are:

What does the tenancy agreement say about service?

Has the tenant acknowledged service in any way (e.g. they may have signed an acknowledgment to confirm receipt or referred to the document in correspondence).

Would it be feasible to serve the documents by multiple methods (e.g. post and hand delivery)?

What evidence can we prepare to show that the documents were served (e.g. time stamped photographs, or certificates or service)??

If you are a private landlord in need of assistance, please contact [email protected]

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