The landlord cannot prove service of the section 21 notice
There is no point in serving a notice unless you can prove it.
In fact if you have a tenant who is prepared to lie about it, if you can’t prove you served your notice, you might just as well not have served it at all.
Its easy for tenants to defend
When you issue a claim for possession, your tenant will be sent a defence form by the court. It is very easy for them to just send that form back saying that they never received the section 21 notice.
If this happens, unless you can prove that the notice WAS served, your whole claim will fail, as service of a section 21 notice is an essential part of the section 21 procedure.
Proving it to the Judge
In many cases it will simply come down to who the Judge believes. That is an important part of their job – to ‘judge’. However it will help them considerably if you can provide some corroboration.
Sending by ordinary post
For example don’t serve notices by the ordinary post. It is a fact that postal items do sometimes get ‘lost’ so how will you be able to prove to the Judge that this did not happen this time? You can’t PROVE that a postal item was actually received by your tenant.
Even if you have a certificate of posting, this does not necessarily mean that it was delivered.
Recorded delivery
This is excellent when the item is actually delivered as you can download a copy of the signed receipt form from the internet.
However often tenants will refuse to answer the door and then refuse to go and collect recorded delivery items. The sort of person who does this is likely to be the sort of person a landlord will want to evict, so I tend not to use this method.
Technically, if you have the right clause in your tenancy agreement, your tenant may be bound by the notice even if he fails to collect it, but I am not very happy about relying on a notice the tenant has not received.
Personal delivery
This is my preference. If you can actually find the tenant and hand the notice to him (or throw it down at his feet if he refuses to take it) this is best.
If the tenant is out you can serve it by leaving it at the property.
However if you don’t trust the tenant, make sure you have an independent witness with you. Someone who will be believed by the court.
The fact that you have a witness will often prevent a tenant from ‘trying it on’ as they know they won’t succeed.
Bear in mind that your witness may need to give evidence in court, so don’t use your temporary assistant who will be returning to Australia in six weeks time.
By the way, make sure you hand the notice to the tenant (or one of the tenants) and not someone else who may open the door. If the tenant is not there, it is best to wait and then post it through the letter box.
Process server
If you are not able to serve the notice yourself – maybe you live in another part of the country, or want to avoid a confrontation – you can use a process server.
This is an excellent choice, and they will also provide a certificate of service you can use at court. Being a professional their evidence is not normally going to be disbelieved by the Judge.
(I generally use Davis Colman as I have found them to be very reliable.)
Electronic service
By this I mean email, fax and the like. The court rules do provide for electronic service and it is sometimes used now between solicitors.
If you are on good terms with your tenant it may be a good way to do things. However with a ‘difficult’ tenant, I think the safest methods are personal service with an independent witness, or using a process server.
Constant vigilance
In many cases you will not need to prove service of your notice. The tenant may be honest and acknowledge that he has received it. Or you may be able to prove service if he refers to it in a letter to you.
But you can never count on this in advance so ALWAYS take care to serve by a method you can prove.
Note that you can find a lot more about section 21 notices in my ebook Assured Shorthold Tenancies : Your complete guide to section 21.
A seemingly simple and obvious detail but I have seen many a possession application thrown out because the tenant said the dog ate it or some such.
Belt and braces all the way with possession
Off the top of my head…
How many problem talents would cash a cheque that was included with the notice without thinking?
A talent may be more likely to agree to sign for a parcel (depending on the time of the year) then a letter.
If you sent the notice by email that constrained a “tracking image” so you could prove it was opened, but would a judge understand it?
What we do is get all parties to sign the section 21, as the signature matches the one on the tenancy there can be no doubt.
@Ryan – that obviously gives you good evidence but if the tenant won’t accept the notice form you then how are you going to get them to sign it?
I like Ian’s ideas.
Yes, those are some great ideas Ian.
The parcel one reminds me of a story I heard about a (lady) process server who once served a document by pretending to be delivering a cake!