Philip Nam recently represented a landlord at a possession hearing. A possession order was granted however a question arose during the hearing as to whether enough notice had been given. It was a claim under Section 8, Ground 8 – where 2 weeks’ notice is required from the date of service.

The facts were: on Thursday 15 August 2024 at around 4:35pm, the notice was sent using Special Delivery guaranteed next day by 1pm. The post office receipt confirmed that the letter was accepted before the last collection. The bundle did not contain any confirmation of delivery. The notice stated in Paragraph 5 that proceedings would not be started until after 3 September 2024.

The solicitors had filed with the Court a Certificate of Service signed with a statement of truth. That stated that the notice was sent by 1st class post on 15 August 2024 and the date of service was Monday 19 August 2024.

The Judge raised the issue asking whether the 14 days ran from 19 August 2024; or from the day after. Philip stated it was from 19 August. Of course, 14 days from 19 August is 3 September. However, to secure the landlord’s position, Philip had to take the unusual step of telling the Judge that the solicitors were wrong. Philip submitted that the Certificate of Service signed, stating the date of service of 19 August 2024 was wrong and the correct date was in fact 16 August 2024 (giving 17 days’ notice). This was because the post office receipt confirmed it was posted before the last collection and that it was a special delivery and therefore in the ordinary course of post, the notice would have been delivered the next day at 17 August 2024.

The “ordinary course of post” argument arises from Section 196 Law of Property Act 1925 and is confirmed in Section 7 of the Interpretation Act 1978. The 1925 Act confirms that in respect of a registered letter, a notice is sufficiently served if it is sent and not returned undelivered and is deemed to be made at the time when the registered letter would in the ordinary course be delivered. The 1978 Act confirms that service is deemed to be effected by properly addressing the letter, pre-paying the postage, and posting it, and it is deemed to be delivered in the ordinary course of post.

In respect of section 8 notices, it is important to know the law regarding deemed service. The Civil Procedure Rules do not apply to such notices. The deemed service provisions can also be contractual (this particular tenancy agreement had no such provision).   Actual service is of course better than deemed service but that will require proof as well.

For support on this matter, please email us at: philip@whitecollarlegalandadmin.com or phone 0151 230 8931.

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