Serving legal notices to tenants
'By specialist landlord & tenant lawyer, Tessa Shepperson'
So! You have drafted up your notice and are ready to serve it on your tenant. What is the best way to do this?
The main thing to bear in mind is that you need to be able to prove that the notice has been served. Legal notices are often served for an important purpose. For example:
• Notices of rent increase as used to base an increase in rent so the tenant may be justified in refusing to pay the extra rent if she successfully challenges the service of the notice on her
• Prescribed Information notices are an essential part of the deposit protection process and failure to do (and again, prove that it has been done) this can have unfortunate results, and
• Possession notices are used to base claims for possession – you do not want to have your eviction proceedings thrown out by the Judge because you are unable to prove service of your notice!
How then can you prove service of your notice? The main ways are:
• A copy of the notice being signed and dated by the tenant
• Evidence of the postal services where the notice has been served by recorded delivery or registered post
• Evidence of someone else – such as an independent witness who watched you serve the notice, or
• Evidence of the tenant – for example if the tenant refers to the notice in a letter or email sent to you
Let us now take a look at the main ways you can serve a document in the light of this.
Service by normal post
This is probably the riskiest method. You may have a certificate of postage, and indeed Judges will often accept this as proof of postage. However it is not necessarily proof of receipt by the tenant. Things do get lost in the post (although probably not as often as is claimed) so a Judge may well accept a tenant’s evidence when he says he never received it.
It is only safe to rely on service by post if you are able to prove this some other way – such as by the tenant signing and returning a copy of the notice to you or by the tenant referring to the notice in a written communication to you.
Service by recorded delivery or registered post
This can be really good as you can usually download from the internet a copy of the signed receipt for the item at the time of delivery.
The problem is that many people will not answer the door, or will refuse to accept the item, or will not go and collect it if it was delivered when they were out.
Depending on how your tenancy agreement is drafted, you may still be able to use this method, but personally I am unhappy about relying on a notice which plainly has not been seen by the tenant.
Delivery of the notice to the tenant at the property
This is in my view the best way to serve a notice – provided you have an independent witness with you. Best of all is to hand the notice to the tenant personally. Otherwise, put the envelope through the letter box.
If you serve the notice on them personally – see if you can get them to sign and date a copy of the notice to prove service (but make sure they put the correct date!)
If someone other than the tenant answers the door – don’t give it to them. Evidentially it is better to put it through the letter box after they have closed the door (it sounds bonkers I know, but that is the case). If there is no letter box then either slide it under the door or, an old process server trick, stick it over the lock so they will have to take it off to get into the property. Get this witnessed and perhaps take a photo.
Service by process server
This is a good option if you are not able to get to the property easily to serve it yourself. For example if you live a long way away or are abroad. Most detective agencies provide a process serving service, or just search against 'process server’ on the internet.
A process server, as part of his job, will (or should) provide you with a certificate of service which you can use in any court proceedings.
Other methods of service
• Email – strictly speaking this should not be used unless the tenant has given consent. Even then you need to be careful and email service is best done in conjunction with another method – as a ‘bolt and braces’ exercise
• Service on companies – this should be done by serving at their registered office address. You can always find out what this is from doing a search against the company at Companies House.
• Fax – this is a bit old fashioned now, but you can serve things by fax – assuming the other party has a fax machine and has given consent
• On solicitors – if your tenant has solicitors you can serve notices on them – provided again that they have given written consent for this.
Provided you follow the guidance here you should have no problems when it comes to proving service of you notice – should this ever be in question.
Tessa is a lawyer and runs the popular Landlord Law information service at www.landlordlaw.co.uk