Document Service for Tenant Evictions

Section 21, Housing Act 1988 creates a “no fault / notice only” ground for possession against an assured shorthold tenant. But a notice may not be given (amongst other reasons) at a time when a landlord is in breach of a prescribed requirement (ss.21A, 21B, 1988 Act). The prescribed requirements (simplified) are that the landlord must have “given” a copy of the most recent gas safety certificate, energy performance certificate and “How to Rent” guide to the tenant before the service of the s.21 notice.

Section 7, Interpretation Act 1978 applies where an enactment “authorises or requires” that a document must or may be served by post. Where the sender can show that the document was placed in a properly addressed and prepaid envelope and put into the postal system, it is assumed to have been delivered in the ordinary course of post and it is for the intended recipient to prove otherwise.

In the case of D’Aubigny v Khan ([2025] EWCA Civ 11) Ms D’Aubigny was the assured shorthold tenant of Dr and Mrs Khan. They sought possession in reliance on a s.21 notice. Ms D’Aubigny accepted that she had received that notice but denied that she had received any of the three documents which comprised the prescribed requirements.

Dr and Mrs Khan contended that they had sent those documents to her by first class post and recorded delivery a few days before the s.21 notice had been served on her. They advanced three alternative arguments. First, they argued that the Interpretation Act 1978 applied and, as they could prove proper postage, that the documents should be held to have been delivered and that bare denial of receipt was not sufficient to rebut the presumption of delivery. Secondly, the tenancy agreement provided that any “notice” served by either party was deemed served if properly addressed and posted (i.e. without the need for further proof of receipt) and that the documents comprised notices. Thirdly, that, as well as s.7, there was a common law presumption that a document which was posted was received in the usual course of events.

Ms D’Aubigny resisted all three arguments. She contended that the 1978 Act did not apply because nothing in Chapter 2, Housing Act 1988 “required” or “authorised” service by post, rather, the provisions governing the prescribed documents were silent on how notices could be given. She denied that the prescribed documents were “notices” within the meaning of the tenancy agreement. Finally, she denied that there was any relevant common law presumption.

The Deputy District Judge found for Dr and Mrs Khan. The Circuit Judge upheld that conclusion and held that Dr and Mrs Khan were right on all three of their arguments.

The Court of Appeal held that the county court judges were wrong in their assessment of the position of the first argument (the Interpretation Act 1978) but were correct as regards the tenancy agreement and the common law, so that the appeal was dismissed. So:

• For the 1978 Act to apply there needed to be an express statutory provision which authorised or required service by post and no such provision had been applied to the prescribed information. So service of the documents could not be deemed under this Act.
• The tenancy agreement clause was, however, satisfied. It applied so as to deem service of all notices: a notice was simply a document which had a formal purpose and was apt to include the prescribed documents.
• That made it unnecessary to consider the position at common law but, had it been necessary to do so, the court would have held that there was common law presumption as to service and, properly understood, the DDJ had held that it had not been rebutted.

For advice on tenancy evi ctions contact Reading solicitor Oliver Kew at o.kew@hewetts.co.uk

Published on 05/03/2025