Landlords and agents often get confused as to how they should serve Notices on their tenants.
Ordinarily it wouldn’t matter what method is used, but if you end up in court with a possession or money claim, or some such court action, then what and how you served Notices on your tenant can be the difference between winning your case, and having it thrown out of court.
Most difficulties arise when the judge spots an error in the wording of the Notice, the wrong type of Notice has been used, or any prescribed information that must be given is not correct.
But there’s also the difficulties when the defendant (tenant) claims they did not receive the Notice, or they received it in the wrong way.
Recent changes in English (AST) tenancy laws mean that a new single type of Section 21 Notice (the Section 21 – 6A Notice) is used for all new tenancies commencing since 1st October 2015. Tenancies entered into prior to this date still require the old Section 21 Notices: Fixed-Term s21(1)(b) and Periodic s21(4)(a), until 1st October 2018, when all tenancies will go to the 6A Notice.
Form N215, Certificate of Service provides a handy checklist for the service of important Notices.
For Notices to be valid the method of service should have been agreed by the tenant/s, which means having a clause in the tenancy agreement to that effect: “Notices to be service in person, by first class mail, or by electronic (fax/email) means,” for example.
Serving in person is by far the safest method as receipt of the Notice and the date and time can be confirmed, though a witness statement (Witness Statement – Notice Serving) should be used if, for example, the Notice is dropped through the letter box.
A witness statement (used for setting out the details of a claim, or to witness a Notice serving) is a formal written document by a person, a set of facts relating to a certain event, or events, signed by the person who makes it, and to confirm that the contents of the document are true a statement of truth makes it valid, providing a copy is served on the other party before any court hearing.
If all of the above apply, the witness does not always need to attend court to give oral evidence, but once they have made a written statement they may be called on to attend and give their evidence in person.
Provisions in the Deregulation Act 2015 make it mandatory to serve pre-tenancy information on tenants at the time a new tenancy commences. (1) An EPC, (2) A Gas Safety Certificate, (3) The Government’s “How to Rent” guide, (4) Details of the deposit protection agency rules and prescribed information (Section 213 Notice). It’s important to do all this and get proof of service, ideally by incorporating the whole into the Tenancy Agreement.
Government gets it Wrong
To underline how complex things get when introducing new rules, even the Government makes embarrassing mistakes. Advice given in the January 2016 edition of its “How to Rent” guide potentially puts some landlords and agents who followed it in a difficult position legally.
The new Ministry of Housing Communities and Local Government (MHCLG) quietly updated their “How to Rent” guide (January 2018), removing their error:
“The landlord must provide you with a copy of this guide: ‘How to rent: The checklist for renting in England’ either via a link or as a printed copy.”
Replaced by new wording:
“The landlord must provide you with a copy of this guide: ‘How to rent: The checklist for renting in England’ as a printed copy or, if you agree, via email as a PDF attachment.”
Legal expert Giles Peaker, posting on his Nearly Legal blog, says that the MHCLG’s previous wording in the guide was a “startling” error as the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 clearly states that the landlord must “give the tenant the [current] version of the document”.
This, in his view, means a printed version of the document and not merely a link to a document online: clearly something that could be used by a tenant in defence, had the landlord or agent followed the original advice, and these landlords or agents have no excuse – only the courts decide based on the regulations.