Landlord Alert: Section 21 appeal may have far-reaching consequences
A case being considered by the Court of Appeal could have far reaching consequences for private landlords, it’s being claimed.
In the case of D’Aubigny v Khan the Court of Appeal will rule on whether it's acceptable for vital documentation to be served by post.
An initial hearing saw the tenant argue that a section 21 notice served on them was invalid because so-called prescribed information - including gas safety certificate, How to Rent guide, deposit information and EPC - could not be served by post.
The National Association of Residential Landlords has studied the case and its head of policy - James Wood - says on its website that D’Aubigny was a tenant of the Khan's under an assured shorthold tenancy when the s21 was served.
The tenant argued that the tenancy agreement did not contain a clause stating that these documents could be served by post.
She also argued that Section 7 of the Interpretation Act 1978, which covers service of documents by post, did not apply because the relavent legislation does not specifically state that these forms may be served by post.
The landlords argued that they had served the documents by recorded delivery and there was a clause in the agreement stating that notices sent by post to the property would be deemed served on the tenant. They also argued that Section 7 of the Interpretation Act 1978 allowed the serving of documents by post.
In the initial decision, and the first appeal, the judges agreed with the landlord. However, the Court of Appeal has now granted permission for a second appeal.
Woods says on the NRLA website: “If the Court of Appeal finds in favour of the tenant, there could be significant implications for landlords.
“Such a ruling could mean that many of the time sensitive documents landlords have served would be invalidated.
“… Similarly, if the Court of Appeal takes the view that legislation must specify when posting a document is sufficient or service, then many of the documents required to be served under a tenancy could not be served by post.
“This could include things such as section 21 or section 8 notices. There could also be a knock-on effect for proposed legislation such as the mandatory written tenancy agreements outlined in the Renters Reform Bill.”
Woods says the association intends to intervene in the case.
A more detailed history of the case and more depth to the appeal’s possible consequences for landlords can be seen here https://www.nrla.org.uk/news/section-21-appeal-major-implications-landlords
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It's about time there was some clarity on exactly how different methods of sending information are viewed by the courts.
Until relatively recently sending paperwork by post or hand delivering it were the only options. Now most communication is by email. A great many tenants don't do in person viewings as they are living abroad and trying to source accommodation ready for their arrival in the UK.
Right to Rent verification is an online procedure so it seems reasonable to me that all other aspects of setting up the tenancy should also be legally valid if done online. Provision of information, electronically signing tenancy agreements, deposit protection certificate, etc. There is always proof an email has been sent.
For prospective tenants I always send all the How to Rent stuff, EPC, gas safety certificate, etc in the same email as the Rental Application form. If they send back the Rental Application form they have clearly received the email.
Several CP12 providers send the certificate by email, so again it seems to me that emailing a copy to the tenant is a reasonable method of providing it.
Jo - not wanting to get too technical with cyber security but be careful with this. Emails are not a secure method of transmitting information. They can be intercepted in transit. (Unless you use a secure, encrypted service) So your proof of sending an email is not proof that a recipient received the email. You may have sent an email with 5 attachments but that is not proof that the recipient received all 5 attachments.
Written copies, with a summary sheet, getting the tenant to sign the summary sheet to confirm they received each individual document, would seem the best way forward. As a backup, I also used to keep electronic documents in an online storage account (e.g. Dropbox) and share access to it with the tenant. So they have no excuse for "lost documents".
Another nail in the coffin for traditional landlords who’s business it ever was the real landlords that created the Business,
now hijacked by every digital academic Johny come lately. That caused the housing crisis with every bull sugar regulation under the sun or we wouldn’t be in this mess, does anyone really believe that we could possibly be this mess without computerisation and you want more, the whole Business has been hacked by the keyboard.
If this goes against us, it’s just another reason to get out or not get into it at all 🫣
I have a clause in the tenancy agreement stating that the tenant has been given a copy of the how to rent guide, gas safety certificate etc prior to signing the contract. Therefore when they sign the contract they confirm that they have received the pre-tenancy documents.
Generally, I serve the necessary documents by email first and also give them a hard copy when we meet to sign the contract so they can inspect them again prior to signing anything.
I think in the case referred to in the Landlord Alert above, the tenant disputed that they had ever received the relevant documents. Of course, somebody could lie about the situation - either the landlord or the tenant - when post is involved.
Just another procedural legal quasi- road block created by the lefty anti- landlord judiciary. My god it smacks of obvious tenant bias. Create a ruling that serving Section 21 by post is illegal and hey presto thousands of notices are unlawful. Eviction stopped.
Agree your every word. It’s all about the onward march of the lefties
undermining society at multiple levels.
I don't think any of these documents should have anything to do with regaining possession at all.
The documents are required by law and so there could be a penalty for not providing them, but the penalty could be something else. I hesitate to say financial because the fines being given to landlords are disproportionate and sometimes outrageous.
Ellie - that's a great point. What does the failure to issue a gas safety certificate have to do with gaining possession? Unfair correlation, something that a landlord's association should be fighting!
I have a form called "moving-in form" which contains the meter readings and a list of the mandatory stuff that I have previously sent the new tenants (how to rent etc). The tenant must sign the list that they have received everything.
It is just absurd how a minor detail can derail a LLs attempt to regain their property. The system is completely biased towards the tenant - no wonder so many LLs are selling up!
It is quite appalling how this one way traffic is being allowed to destroy the PRS. Two more of mine will be going on the market just as soon as i've finished re-furbing them!
It's going to be interesting because there must be thousands of other documents in other areas such as loans, mortgages that are regularly served by post that could be affected. However, the fact is that by sheer custom and practice I do not see on what grounds the Court of Appeal can decide against service by post for these specific documents.
Well exactly John, next time I get a speeding ticket through the post I will be able to say it's not been served correctly and will ignore it
I always present them with the lot personally immediately before signing the Tenancy Agreement, take as long as they want to read them, there are also written into the agreement and signed that they have received them.
That is the Gas Certificate annually, the 5 year DEICR, EPC, Fire Certificate annually, Emergency Lighting Certificate annually,
How 2 Rent guide by the anti-private landlord organisation with Charity Status and £60m + pot that don’t supply any housing , HMO licence Mandatory / Additional or Selective, Right 2 Rent checks, ICO registration requirements.
This is all extra burden being placed on private landlords and we didn’t check the potential Tenants yet ?. This is all apart from the maintenance upkeep and purchase of the property etc.
Then they apply Section 24 they really want us out bad, this couldn’t possibly have anything to do with the housing crisis could it ?.
More red tape, technicalities and bull 💩 to try to catch Landlords out. I serve docs by post and email and get Tenants to acknowledge emails and sign paperwork that they received these documents on each QUARTERLY Inspection.
My Tenants are also provided wuth a Tenant Infobfolder with all docs in AND sign a document at the start of the TA confirming receipt of all documents and a yearly document check sheet as part of the Inspections.
Yet another example of how much of a lottery our judicial system is!
Le3gal decisions depend on the views of individual judges and is not standard across the whole system!
We have been seeing it for years with possession cases and rent repayment terms under S8 notices.
Yet another reason why Landlords will consider selling up if the appeal is successful!
Im asking at least 6 months up front and if its not let in 6 months im selling up
Had just about enough brain damage thx 🙏
What a ridiculous situation. Post has alywas been a method of serving notices in law. I am not sure you need to state this in an agreements, although it's advisable to do so.
You've made the key point, Nick!
So reading this looks like a sponsored activist ruse. Who is paying the legal fees, who is paying the rent, what is the reason for the S21 being issued, the name suggests not brought up on the council estate and probably went to university with the lads and lasses of Shelter Gen Rent Acorn etc.
Like Ellie, I provide all pre-tenancy documents, including tenancy agreement, a day or 2 before tenancy start date. The TA lists all documents provided to the tenants and they sign the tenancy accordingly. The check on inventory is usually sent within 2 days and allow them to let me know of any differences within 7 days. All security deposit related documents are emailed to the tenants and I get them to confirm receipt if them. Some of them state they have received from the TDS as well.
Contd from previous email, sent before completing it. Not sure why the tenants and court make it an issue over this. Also get hard copies printed and get them to sign one copy. Which I keep.The tenant is clearly being pedantic over this issue. Delivery by email, post (with certificate of posting), hand delivery all should be suffice and valid. These tenants should never be allowed to rent another property.
So lets all know who these tenants are so we can black list them
Andrew, possibly SBR & JT? 😂
A L I would love to meet SBR and JT in the flesh as well
What a waste of court time and money with 2 appeals. It should be straight forward, landlords wants possession, simple!
I wrap all the documents in the same pdf as the tenancy agreement and have it signed electronically. Every single page has to be initialled by the tenant.
Of Course that assuming always that you have all the Documents and they expire so quickly especially when you have a number of properties ending at different times and so expensive & time consuming. I think the emergency light one should be changed to 5 years what’s to go wrong with them it throwing away money away. The prescribed information should go they have it on their mobiles and we rented for decades without it. The How 2 Rent guide should go again we were renting for decades before the non-housing Organisation dreamt it up, starting with 8 pages changed 14 times now 18 pages, get rid of unnecessary clutter by people with no input. Get rid of the Model Tenancy Agreement by Government 4 times too much crap.
Just a thought, why can't copies of the documentation be stored with a 3rd party as we do with deposits? It would be worth a few quid to have the security of knowing that all the legal papers are in order and can't be questioned by any court or tenant.
The Deposit Schemes are not a protection but a liability that has been proved many times when the Court says it hasn’t been protected this way or that or didn’t serve the prescribed information. Which is why I stopped taking Deposits following Shelters intervention in 2007 when they alleged up to 40% of Deposits were withheld by landlords, what a whopper, it later proved to be less than 2%. So we have laws based on lies and it still stands.
No more quangos please just scrap the stupid biased Bill.
All this is happening while we are kept busy squabbling over all the unnecessary legal pit falls designed to trap us, in the meantime the big boys are quietly taking over without a murmur, no one attacking them will their Shipping Containers based Flats squeezed in like sardines 600 units in Hanger Lane Gyratrory for example or back to flimsy Cladding high Flats packed-in all over the place. We have taken our eye off the ball as the big boys take over unimpeded. This is reason behind the housing crisis from start to finish deliberately invented achieve, was there a housing crisis or unaffordable rents and landlord exit on this scale before Mr Michael Gove’s fraud Renters Reform Bill, certainly not.
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