Anybody who is involved in property matters (be it landlord, tenant, agent, legal adviser or otherwise) needs to be aware of how to draft and serve a notice correctly in accordance with the relevant contract or the relevant statute.
The service of a notice is often a key step in creating, exercising, maintaining or terminating legal rights pursuant to a lease, a contract for the sale of property or an option agreement. Key examples include: break notices, section 146 notices, notices under the Landlord and Tenant Act 1954 and option notices. Making absolutely sure that a notice is drafted and served strictly in accordance with the relevant requirements is essential. Failure to do so can result in the loss of legal rights or unwanted continuing financial obligations.
In this fifth edition of our series of essential guides for the in-house lawyer, we will focus on key practical tips to ensure the service of your notice goes without a hitch. [NB – whilst some of the tips contained in this article will be relevant to service of notices generally, this article is specifically written with property based notices in mind].
Any requirements for the service of notices, whether contractual or statutory, must be strictly complied with.
Although minor defects in the notice will not necessarily invalidate it (see the Mannai principle below), any contractual or statutory requirements governing the form and service of the notice will be strictly construed. The Mannai principle is about the construction of notices, not how they are served.
Many contractual documents provide that notices will come to the attention of the appropriate person or party and determine how notices are delivered and when notices are deemed to have been given and received.Therefore, the starting point is to always check whether the particular contract or lease under which the notice is being served provides a method of, and/or address, for service.
Some leases or contracts will specify that notices are to be served in accordance with section 196 of the Law of Property Act 1925 (see below).
If the contract provides for more than one method of service, then there is no harm (unless stated to the contrary) in serving the same notice using a number of different methods. For example by sending the notice by first class post and by recorded delivery.
Generally, unless stated otherwise (or unless deemed service provisions apply), then the notice will be served once it has been received rather than once it has been sent. However, this general principle will very much depend on the relevant applicable legislation and on whether any deemed service provisions apply. For example, the case of CA Webber (Transport) Ltd v Railtrack  stated that where a notice is served by a primary method authorised by section 23 of the Landlord and Tenant Act 1927 (see below), it matters not whether the notice was actually received; the date of service is the date when the server entrusts the notice to the post for recorded delivery and that provides certainty for those who are required to serve documents.
Law of Property Act 1925 (“1925 Act”) – section 196
This applies to: (a) any notice that is required or authorised to be served or given by the 1925 Act and (b) any notice required to be served by any instrument affecting property, unless the contrary intention appears.
According to section 196, the following rules apply to notices:
- They must be in writing.
- They must be addressed to “the tenant”, “the mortgagor” or “the persons interested”.
- Notices can be served by:
a. Leaving it at the last known place of abode or business in the UK of the person to be served. A company’s place of abode is its registered office address.
b. Sending it by registered post (which includes recorded delivery) at the place of abode or business providing it is not returned by the postal operator.
Landlord and Tenant Act 1927 (“1927 Act”) – section 23
This applies to: (a) any notices that is required or authorised to be served or given by the 1927 Act (b) any notice served under the Landlord and Tenant Act 1954 (for example, section 25, 26 and 27 notices) and (c) certain notices served under the Landlord and Tenant (Covenants) Act 1995 (for example a section 17 notice).
According to section 23, the following rules apply to notices:
- They must be writing
- They may be served by personal service or by being left at the last known place or abode or posted by registered post (which includes recorded delivery)
- Where notice is to a landlord, the service may be to the landlord or any agent of the landlord duly authorised
Interpretation Act 1978 (“1978 Act”) – section 7
If neither of the above Acts apply, then the 1978 Act may assist. It provides that where an Act authorises any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
Difference between recorded delivery and registered post
The 1925 Act (and some leases and other contractual documents) refers to service by registered post. Many contracts and leases also refer to registered post. Technically, registered post no longer exists. However, the Recorded Delivery Service Act 1962 effectively replaces references to registered post with recorded delivery.
The Mannai principle
Minor defects in notices will not necessarily invalidate the notice if the reasonable recipient, with knowledge of the factual and contextual background, would not be confused by the error (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd ).
In this case, the tenant had a right to break the lease provided that they gave not less than six months’ notice in writing to expire on the third anniversary of the term commencement date. The notice served by the tenant stated that the termination date was 12 January 1995 but the third anniversary date was actually 13 January 1995. The Court of Appeal held the notice was effective because even though there was an error, it was otherwise clear and unambiguous and left the landlord in no reasonable doubt about the tenant’s intention.
What the Mannai principle doesn’t cover
The Mannai principle should be used as a last resort as it, by no means, covers all mistakes made in relation to notices. For example, it does not cover the following:
- Where there are requirements relating to when and where a notice is to be served (see Claire’s Accessories v Kensington high Street ).
- Where there is incorrect or missing information in a statutory notice (see Speedwell Estates Ltd v Dalziel , Burman v Mount Cook Land Ltd ).
- Where statutory notices are not in their prescribed form.
- Where notices have been served by the wrong person or on the wrong person (see Lemmerbell Ltd v Britannia LAS Direct Ltd ).
It is therefore essential that any requirements governing the form of contractual and statutory notices are followed to the letter as above. As Lord Hoffman stated in the Mannai case, “If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease.”
- Obtain all the deeds to the property, including licences to assign. Also obtain the Official Copies.
- Check any rent demands and rent authority letters produced by the landlord.
- Clarify the precise identity of the parties with reference to the Official Copies, Companies House and the deeds to the property.
- Consider the lease or contract in detail paying particular attention to (a) the provision under which you wish to serve the notice (for example, refer to the break clause if you want to serve a break notice) and (b) the boilerplate provisions regarding service of notices (if there are any).
- Always check whether there are any contractual or statutory time limits or service deadlines. Notices served after the deadline will be invalid. Also check whether there are specified times for the earliest date of service – a notice served too soon will also be invalid.
- Consider whether there are any mandatory service provisions contained in the lease or contract. If not, consider whether any statutory provisions apply.
- Be careful with emails. Unless a lease or contract expressly refers to service by email, then it would be prudent to rely on more traditional methods of service. Whilst an email might satisfy a requirement for something to be “in writing”, it is unlikely to satisfy the requirements relating to service.
- Consider the most appropriate method of service taking into account the nature of the notice and the deemed service provisions. For example, under section 196 of the 1925 Act, a notice is deemed served by recorded delivery unless it is returned undelivered. A landlord who wants to avoid a tenant serving a break notice on it may refuse to sign for it. If this happens, consider re-serving in a plain envelope or personally if permitted by the terms of the contract. Remember, you may be able to serve the notice in more than one way and at more than one address and, if you anticipate problems in serving and/or are close to the deadline, then it may be best to serve the notice in a variety of different ways at more than one address.
- Ask the recipient of the notice to acknowledge receipt and enclose a counterpart notice and pre-paid envelope for that purpose. They don’t have to acknowledge it but they might!
- It is best practice to obtain evidence of service. With recorded delivery this is easy. When delivering by hand (or by personal service), then effort should be made to obtain a courier receipt or a witness statement from the person effecting service.