This is day 22 of my 31 days of tips on tenancy agreements series. To see the rest of the series click here.
Providing for service of notices in your tenancy agreement
There are two elements to this, service of notices upon you (the landlord), and service of notices upon tenants. Both should be dealt with in tenancy agreements.
Service of notices on the landlord
It is not always realised that there is legislation, section 48 of the Landlord and Tenant Act 1987, which specifies that tenants must be provided “with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant”. Sub section 2 goes on to say:
Where a landlord of any such premises fails to comply with subsection (1), any rent or service charge otherwise due from the tenant to the landlord shall … be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.
Which means that if you have not given the notice, the tenant does not have to pay rent until you do (at which stage all the back rent will fall due so you will not lose anything).
Or, if you do not give the notice, and bring proceedings for possession based on rent arrears, your tenant will have a valid defence.
It is normal for the section 48 notice to be given in tenancy agreements. There is case law which says that so long as there is an address given for the landlord in the agreement, this does not specifically have to say that it is a section 48 notice.
It is very important therefore that tenancy agreements include an address for the landlord. Although the s48 notice can be given separately, if it is in the tenancy agreement is easier to prove to that it exists and has been received.
The address does not have to be the landlords home address. It can be a business address. Frequently it is the letting agents address. It can also be the address of a friend or relative, for example if the landlord is not using an agent and lives in Scotland or overseas (so his own address would not comply).
Service of notices on tenants
It is also a good idea to set out arrangements for serving notices on the tenant. The best method of service is personal service on the tenant (ie handing it to them, or throwing it down at their feet if they refuse to take it).
However often the landlord will not want to risk a confrontation, or the tenant may never be available to receive personal service. In that case the next best thing is service by leaving the notice at the property (in an envelope addressed to him). This can be by
- putting it through the letter box
- sliding it under the door (making sure you are not also sliding it under the carpet too), or
- (a process servers favourite) sticking it across the lock of the door so the tenant has to take it off to get in
It is advisable to have a clause in the tenancy agreement saying that notices will be validly served on the tenant by leaving them at the property. The clause should also say that the notice will be ‘deemed served’ on the tenant on the next working day after it has been left at the property.
Tenancy agreements sometimes refer to section 196 of the Law of Property Act 1925. This is a section which provides for service of documents on lessees/tenants and mortgagors. It says basically that they will be deemed served the day after they are left at the property concerned, or if they are served by recorded delivery, on the day after they would have been delivered in normal course, provided the letter is not returned by the postal authorities.
So referring to section 196 of the Law of Property Act, is a sort of legal shorthand for saying this, and this is often done in leases. Except if you are preparing a tenancy agreement for ordinary tenants (ie consumers) they won’t normally have a clue about the Law of Property Act (and why should they?) so it is perhaps best avoided.
Do you have any comments on this section? Do you put a clause regarding service of notices in your tenancy agreements? Have you had any experience of people coming unstuck through not complying with s48?
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