Deemed Service of Notices on Tenants
One of the most common stumbling blocks in landlord-tenant disputes is whether a tenant has actually received a notice or a document they were supposed to. It’s not unusual for tenants to deny receipt, especially when facing eviction under Section 21 of the Housing Act 1988. These denials can delay proceedings, create extra cost, and lead to lengthy litigation.
In a key ruling, the Court of Appeal has now clarified the legal position on deemed service in the Judgement of the Court of Appeal in D’Aubigny v Khan . This case is essential reading for landlords and agents, as it confirms how notices and documents must be served—and what happens when tenants claim they didn’t receive them.
The Facts
The landlords sought possession under Section 21 of the Housing Act 1988. While the tenant admitted receiving the Section 21 notice itself, she denied receiving three legally required documents:
- A current gas safety certificate
- An up-to-date energy performance certificate (EPC)
- The latest version of the How to Rent guide
Under the Deregulation Act 2015, these documents must be given to the tenant before a valid Section 21 notice can be served. If any are missing, the notice is invalid, and possession proceedings will fail.
The landlords said they had sent all three documents by regular first-class post and, as an added precaution, also by recorded delivery. They maintained this fulfilled the requirement that the documents had been “given” to the tenant.
The Legal Arguments
The landlords advanced three key legal bases to support their position:
1. Section 7 of the Interpretation Act 1978
This section provides that if a statute allows or requires service by post, then service is deemed effective if the item is properly addressed, prepaid, and posted—unless proven otherwise.
2. Service Clause in the Tenancy Agreement
The tenancy agreement included a clause stating that any notice sent by first-class post to the property address would be considered properly served.
3. Common Law Presumption of Delivery
At common law, a letter that is properly addressed and posted is presumed to have been delivered unless the recipient can prove otherwise.
On the other side, the tenant’s representative argued that:
The Interpretation Act 1978 didn’t apply because the Housing Act 1988 doesn’t expressly require or authorise postal service.
The tenancy clause only covered “notices,” and the required documents weren’t technically “notices.”
A simple denial of receipt should be sufficient to rebut the presumption of service.
The Court’s Decision
The Court of Appeal upheld the possession order—but refined the reasoning.
1. Interpretation Act 1978 – Not Applicable
The court agreed that this Act didn’t apply because the Housing Act 1988 doesn’t explicitly state that the documents must be served by post. Permission to serve by post isn’t enough; it must be a statutory requirement. So, landlords should not rely on this Act unless the relevant legislation makes postal service mandatory or authorised.
2. Tenancy Agreement Clause – Applicable
The court accepted that a letter enclosing the gas certificate, EPC, and How to Rent guide was a “notice” for the purpose of the agreement. A “notice” doesn’t have to be labelled as such—it simply needs to formally notify the tenant of something relevant to the tenancy.
3. Common Law Presumption – Upheld
The court reaffirmed the principle that a properly addressed letter is presumed delivered. A tenant’s bare denial of receipt doesn’t override this presumption. To rebut it, actual evidence is required—simply saying “I never got it” won’t cut it.
Lessons for Landlords and Letting Agents
This ruling reinforces the importance of process and documentation. Even as the Section 21 process is phased out under the upcoming Renters’ Rights Bill, landlords will still need to serve various documents correctly. Here’s what to keep in mind:
Keep tenancy agreements updated. Include robust clauses about how notices and documents may be served, ideally covering post and digital methods.
Don’t rely on recorded delivery. It can cause delays if tenants refuse delivery. First-class post with a certificate of posting is usually more effective and still benefits from the common law presumption.
Double up. While not strictly required, sending documents by email or text (with attachments) adds an extra layer of evidence. You can even ask for acknowledgment to bolster your position.
Be organised. Maintain records of when and how each document was sent. Simple admin mistakes can derail an otherwise valid case.
Final Word
The key takeaway from D’Aubigny v Khan is that service is about what you can prove, not what the tenant claims and bare denial of receipt of notice is not enough to rebut the presumption of service. Landlords who follow best practices, keep accurate records, and have important clauses relating to service of notices in their tenancy agreements will be far better protected against disputes over service.
If you require legal advice, or service of notice, contact our legal team now by completing our online form and a member of our team will be in touch.
