You will sometimes see a reference to section 196 of the Law of Property Act in a tenancy agreement – but what does it mean?
Essentially it is a legal shorthand for saying what rules should apply regarding the service of documents.
The s196 rules
These are that a notice will be properly served on a tenant if:
- It is left at the last known residence of the tenant
- It is “affixed or left for him” which generally means either put through the letter box or stuck on the door (a process server trick is to sellotape it over the lock so it has to be removed before the tenant can get in)
- It is sent by post in a ‘registered letter’ (this now includes recorded delivery) AND is not returned as undelivered
- It does not apply to papers in court proceedings
A few comments on this.
So far as recorded / registered delivery is concerned, I personally do not like this as a method of service – at least for ‘difficult’ tenants. As in my experience they invariably refuse to accept delivery. In which case it will not be properly served under s196.
So leaving it at the property (with an independent witness in case the tenants deny that you have done it) is generally best – if you cannot find the tenant to effect personal service (or if you are trying to avoid a confrontation!).
Section 196 will not help you if you are serving a claim form (for example) in proceedings for possession. But it will apply to possession notices as they are served before the claim starts.
Should you use section 196?
My view is that you shouldn’t. Most lawyers will know what it means but ordinary people will not.
In their guidance on unfair terms in tenancy agreements, the Office of Fair Trading made it clear that they would consider a clause ‘unfair’ if it referred to sections in acts of Parliament which are likely to confuse non lawyers.
You need to HAVE a clause in your tenancy agreement about service of notices, but I think it is best just to say what methods of service should be used. Rather than to refer to an obscure act.