If you are in the business of renting residential property you will be aware of the numerous formalities involved and will, most likely, have ensured your tenancies are formalised in the form of leases.

Leases created on or after 28 February 1997 will automatically be Assured Shorthold Tenancies (or ‘AST’s’) unless the Landlord has served a notice to the effect it is not an AST.

It is inevitable that there may be situations where a Landlord wishes to bring an AST to an end. Bringing an AST to an end by serving a ‘notice to quit’ will involve serving either a s8 or a s21 notice (pursuant to the procedure set out in the Housing Act 1988) on a tenant. A Landlord cannot evict a tenant without following the proper procedure and obtaining a Court Order.

There are lots of technicalities to consider (which aren’t explored in this article) but in this day and age a Landlord could be forgiven for thinking they can serve a s8 or s21 notice on a tenant by email, but can they? The entire purpose of service of a notice is to bring the document to the attention of the recipient tenant and one would think this is just as effectively achieved by email as it by any other means. It could be argued that its more effective because it is fast, easy and the sender Landlord can request a delivery and read receipt to prove receipt by the tenant.

However, in general, email is not usually considered a valid means of serving notices on tenants unless the tenant has agreed to accept service by email in advance. In such circumstances it would be prudent to obtain this agreement in writing and even better for the lease to make express reference to service by email being effective. However, Landlords must be mindful that delivery failure notifications can take hours if not days to reach the sender.

The issue of service of a notice by email was considered in 2017 by HHJ Dight in the case of Cowthorpe Road 1 – 1A Freehold Ltd v Wahedally [2017] L&TR 4 in which he concluded that email did not amount to service of a notice in writing for the purposes of the Leasehold Reform (Housing and Urban Development) Act 1993. In reaching this conclusion he considered the specific wording of that Act which referred to ‘copies of notices’ throughout but sections 13 and 21 simply referred to the notice itself. His logic being that the original must be served in such circumstances.

These issues extend to notices served under the Housing Act 1988 which also refers to copies of notices on a number of occasions. However, both sections 8 and 21 refer to ‘notice’ being served. Following HHJ Dight’s reasoning there is an argument to say that the original notice (and not a copy by email) must be served. This is plainly an area of law in need of consideration by a superior court.

Whilst HHJ Dight’s decision is not binding if all that is required is the service of a copy of the notice email can be effective (in the circumstances described above) but if it is the notice itself which must be served it would be prudent not to rely solely on email for service as there is a risk service may not have been validly effected in those circumstances.

Even where an agreement to serve notices by email exists, or there is a specific term inserted into the lease, at Lupton Fawcett we would always advise Landlords to take the old fashioned approach and to also serve notices by hand or by putting them thorough the letterbox. Notices are time sensitive and a Landlord will have to prove service has been effective. A Landlord may wish to instruct a Process server to serve the notice, particularly where it is suspected a tenant may deny receiving a notice.

If hand delivery really isn’t an option the next best option is post. However, Landlords must bear in mind that proof of postage or the use of recorded delivery may still result in arguments over service and a tenant could refuse to sign for the notice. The approach taken, in reality, will often depend on the tenant and the facts that have led to the Landlord wanting to evict the tenant. Often a notice is sent by various means to cover all bases and Landlords rarely obtain tenants email addresses.

The implications of getting service of a s8 or s21 notice wrong include delay in securing eviction. This may be particularly frustrating in situations where the tenant is in rent arrears. If you are a Landlord who would like help with serving a s8 or s21 notice or any other landlord and tenant advice Lupton Fawcett LLP can help.

For further information relating to the points raised in this article, please contact Kirsty CogginRob Cooke or a member of the Property Litigation Team.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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