Signed, Sealed, Returned - Service of 1954 Act Notices and the Decision in Lamba v Enfield LBC

Facts

The tenant (who operated an estate agency business from the property) denied having received a section 25 notice served by the landlord pursuant to the Landlord and Tenant Act 1954.

The landlord's solicitor had sent the notice by special delivery and were unaware that it had been returned to the sender undelivered. There was no evidence that the notice had been sent by any other method of service e.g. first-class post.

The tenant argued that the notice had not been validly served and therefore that they should not have been evicted by the landlord.

 

Relevant Lease Clause and Legislation

Section 66 of the 1954 Act states that section 23(1) of the Landlord and Tenant Act 1927 applies for the purposes of serving notices. Section 23 of the 1927 Act provides that:-

"Any notice, request, demand or other instrument under this Act shall be in writing and may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England and Wales, or by sending it through the post in a registered letter addressed to him there … "

However (as is often the case) the lease expressly incorporated the service provisions contained in section 196 of the Law of Property Act 1925. Clause 9.9 of the lease stated that:- 

"The provisions section 196 of the 1925 Act, as amended by the Recorded Delivery Service Act [and that amendment is simply to substitute recorded for registered in terms of post] shall apply to the giving and service of all notices and documents under or in connection with this lease."

Note the words "shall apply" that are highlighted.

The relevant provision under the 1925 Act is section 196(4):-

"Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee … by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned to the postal operator, within the meaning of Part 3 of the Postal Services Act 2011 concerned undelivered; … that service shall be deemed to be made at the time at which the registered letter would be in the ordinary course have been delivered."

An important distinction for this case was that service pursuant to section 23 of the 1927 Act would be deemed valid provided the landlord could show evidence of postage even if the letter was later returned undelivered. Accordingly, the risk of non-delivery would rest with the tenant if section 23 applied, but with the landlord if section 196 applied. The question for the court was therefore which service provision applied.

 

Legal Issue

The tenant's case was that only service pursuant to section 196 of the 1925 Act would be valid as the service provisions in the lease trumped the wording of section 66 of the 1954 Act. In other words, the fact that the notice had been returned would render it ineffective.

The landlord tried to submit that both section 196 (of the 1925 Act) and section 23(1) (of the 1927 Act) applied. They argued that section 23 provided an alternative and/or additional service regime (and therefore the fact that the tenant did not receive the notice could be disregarded).

 

Decision

The Court found in the favour of the tenant. It confirmed that the provisions in the tenant's lease were not permissive – it stated that only section 196 shall apply. Section 23 did not apply at the same time, and the notice was therefore deemed not to have been served as it had been returned undelivered.

 

Practice Points

Check the service provisions in your lease carefully before serving a notice so that you are clear on which of the two deeming provisions referred to above will apply. If there is any doubt, it would be advisable to assume that the more limited provisions of section 196 apply.

An evidence trail showing (a) the date of service of the notice; (b) the method of service; and (c) proof of delivery is key.

If you are unable to obtain proof of delivery, you need to be careful – it is not always the case that you can fall back on section 23!