Whether a notice has been properly ‘served’ upon another, is often a point of dispute between parties. This article provides guidance to help those serving notices to avoid common pitfalls, and to assist recipients in assessing the validity of notices received.
In property, there are so many different situations which may call for a notice to be served, and definitely too many to exhaustively list here. To name just a few, though, a notice can be served in order to bring a tenancy to an end, to exercise a break option in a lease, or to consult long leaseholders on major works. Although there are wide-ranging instances in which a notice may be required, there are usually strict rules governing the form and content of a notice and how it should be served on the intended recipient… and getting it wrong can have serious consequences!
Landlords of both residential and commercial property, and agents acting on behalf of landlords, will likely be well aware of the importance of adhering to the requirements for form, content and service of a notice. A tenant or individual may be less familiar, although they should take notice of the requirements in order to adequately protect their position, if they are planning to either serve a notice, or so that they are able to check the validity of any notice they receive.
Care should be taken to ensure the form and content of a notice is correct, although case law (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd amongst others) does suggest that minor errors will be ignored if the notice is clear and its purpose obvious. The position is very different with service of the notice though, requirements for how a notice should be served must absolutely be complied with, as case law demonstrates that defective service can invalidate an otherwise acceptable notice. If a notice is deemed invalid, the ramifications can be huge, as the person who served it will not be able to rely on it. For instance, if a landlord seeking possession of a residential property served a Section 21 notice on its tenants by email only, this would likely be deemed invalid, as email is not usually an acceptable method of service in most tenancy agreements. In this case, the landlord would have to properly serve a further notice before applying for possession, which would only prolong the process of ending the tenancy, delay the landlord in regaining possession, and increase costs. To provide another example, if a commercial tenant sought to exercise a break option in their lease but served the notice out of time, this would mean that the break option had not been successfully operated and so the lease would continue - tying the tenant into the lease and its obligations for many more years, at what could be a substantial expense when considering the obligation to pay rents, insurance, business rates etc.
It is therefore important to ensure the form and content of the notice is correct, but beyond that, that the notice is then validly served and that any statutory or contractual requirements for on who, when, where and how that notice should be served, are complied with. Those receiving a notice should also be alert to the requirements, so they are able to check the notice itself and assess whether it has been served correctly.
When preparing to draft and serve a notice, bear in mind the following points for who, when, where and how: -
Although who the notice should be addressed to should be fairly straightforward, it would be wise to double-check this point before sending a notice out. For instance, if you are a commercial tenant planning to serve a notice on your landlord, it would be advisable to confirm the position with the Land Registry prior to sending, to confirm that your landlord is still the freeholder of the property. If the landlord named in the lease has in fact since sold the freehold to another, you may need to address your notice to the new freeholder, instead. A lot can happen between when an agreement or lease is first entered into, and when a notice is required to be served (which could be many, many years later), it is therefore important to be vigilant, and check what seems to be even the most obvious of points.
Some instances will allow for a notice to be served but only on a set date or during a specific period. It is vital to check when a notice can or should be served by, to ensure it is done in time and so that it is valid. It is possible that there may only be one opportunity to serve a notice (for instance when there is only one break date in a lease), and serving the notice out of time will most likely invalidate it, it is therefore important to get this right. It may also be sensible (depending on the circumstances) to send the notice in plenty of time, to allow for service to take place, and to provide reassurance that the notice will be served in time before a deadline.
We would suggest that the clause, agreement or contract is checked to find out where a notice should be served.
If it is dictated that notice is to be served at a companies’ registered address, check Companies House for its up-to-date information, as the registered address may have changed since the agreement was entered into (and this is often the case).
However, do not assume that notice should be sent to a companies’ registered address, as the clause, agreement or contract may in fact require the notice to be sent somewhere else entirely – for instance, to a firm of solicitors acting for the recipient. It is therefore important to check this to avoid service of the notice not taking place.
There are various methods of service, but a specific method of service may be required – which could include service by post, fax, hand-delivery, in writing, and sometimes email. You should check whether a particular method of service is specified.
If a particular form of service is not nominated, look to Section 196 of the Law of Property Act 1925 for guidance, which sets out that a notice must be in writing and either: left at the recipients last known address or registered address, or, sent by registered post to the last known address or registered address - in which case it will be deemed served when the letter is delivered. Note that when the notice is sent by registered post, delivery is required in order for the notice to be considered served, so, it is important to track the letter to ensure the notice is delivered to the recipient, and to record and save that proof of delivery, in case this is disputed later down the line.
In addition to considering the form, content and service of a notice, it is possible that there may also be conditions to fulfil, in order for the notice to be effective. For instance, a tenant seeking to exercise a break option will likely need to serve a valid notice and pay all of the rent due under the lease. If the conditions are not fulfilled then the notice will not be effective, even if the form, content and service of the notice all satisfactory.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
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Service is often a cause for dispute, so please speak to us before serving a notice, to avoid a delay caused by arguments around the content, form or service of a notice after it is sent. Likewise, if you have received a notice and are not sure whether it is valid, speak to us as soon as possible so that we can advise. You can contact us for specialist advice at [email protected].
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