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Beware of Service of Notice by Email

View profile for Chris Hall
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It is no secret that, in most cases, the law takes some time to catch up with real life.  Perhaps it is because the politicians tasked with proposing legislation are reactive rather than pro-active.  Perhaps it is because our law has a long history of judicial development in which those deciding cases are able to use a large amount of discretion when applying (often very old) legislation to myriad of new and distinct scenarios.

Whilst we, in the United Kingdom, take for granted the development of law through judicial decisions (the Common Law system), it is worth remembering that not every country has the same practice.  Most of continental Europe and Central and South America, for example, use a Civil Law system in which there is no (or little) judicial precedent.  It’s legal authority is in written codes, i.e. written legislation.

Of course, there are advantages and disadvantages to each system and the flexibility afforded by the Common Law system is tempered by often unintended, or perhaps unwanted consequences.  The fallout from the decision in Superstrike Ltd v Marino Rodrigues [2013] EWCA Civ 669 is one such obvious example.  When it comes to the question of the validity of notices served by email, both the written legislation and the current case law on the subject are rather unsatisfactory providing silence and perhaps unintended consequences, respectively.

It goes without saying that most of the legislation that concerns the service of notices on property were drafted long before electronic mail was envisaged.  Of course, email is, and has been for quite some time, the most used form of written communication.  Prior to 2017, if a question ever came up as to whether service by email was allowed, the answer given was fairly straightforward.  Section 196 of the Law of Property Act 1925 allowed for service of notices relating to property by hand-delivery or registered post (i.e. recorded delivery) only but that other methods of service were allowed if specifically expressed in the tenancy agreement.  So, if the tenancy agreement says that email service is ok, then email service is ok.  This position seemed to be backed up by the Interpretation Act 1978 which defined “writing” as including “typing, printing, lithography, photography and other modes of representing or reproducing words in a visible form and expressions referring to writing are to be construed accordingly”.  Further, the Law Commission has also stated that emails and website trading will generally satisfy the Interpretation Act definitions of writing.

In 2017, however, the County Court at Central London reached an altogether different conclusion in Cowthorpe Road 1-1A Freehold Ltd v Wahedally [2017] L. & T.R. 4..  It is worth remembering that, as this is a County Court decision, it is not binding.  However, it is capable of influencing other decisions on the same point.

The case concerned a notice served under the Leasehold Reform (Housing and Urban Development) Act 1993.  The judge (HHJ Dight) considered the wording of s99 of that Act (although the notice in question was served under s21) and, in particular, noted that it provided that any notice sent in accordance with the Act must be in writing and may be sent by post.  The judge concluded that, as the notice may be sent by post, it can be inferred that a hard copy was required.  He also noted that it was a requirement of the notice that it must be signed and that, therefore, any notice sent by email could not be an ‘original’.  It could only ever be a copy.  Further, HHJ Dight also noted that the Act in question referred in numerous place to “copies” of notices whereas s21 referred only to “the notice”.  He concluded therefore that a copy was not sufficient and that, as an emailed version could only ever be a copy, as opposed to “the notice” itself, email service was not sufficient.

So, how does this affect those in the lettings business?  To follow the above reasoning, whilst the Housing Act 1988 also refers to “copies” of notices on a number of occasions, both s8 and s21 of the same refers only to “notice” being served.  All of which suggests that relying on an emailed “copy” may not be sufficient.  The best advice is to always serve by hand or by post, if the tenancy agreement allows.

What is clear from the above is that some uncertainty on the subject of electronic service remains, and will most likely continue to do so until such time as a higher court is asked to provide a determination.  It seems to me that the very purpose of any notice seeking possession is to ensure a tenant is aware of the landlord’s desire for them to vacate the property and that email is not only the most efficient way of doing this but it is also the most fail-safe way.  Any decision which effectively ensures that a landlord must use a method of service which decreases the likelihood of a notice to quit reaching their tenant must surely be nonsensical.  But, as already pointed out, this is one of the consequences of the Common Law system.  We must take the rough with the smooth.