The need to give or receive notices arises frequently when you are dealing with commercial leasehold properties. A notice is a formal way in which one party can make their intentions clear to the other party. Examples of when notices may be required include: contracting out of the Landlord and Tenant Act 1954; ending or renewing a lease under the 1954 Act; exercising a break or renewal right; initiating a rent review; giving notice of dealings; forfeiting of a lease; recovering rent from former tenants; and following the commercial rent arrears recovery procedure.
This note provides a general overview of the things to think about when dealing with notices: it does not attempt to look at rules relating to specific types of notice and legal advice should always be sought when giving notice or if you wish to challenge the validity of a notice.
Why do notices matter?
While relationships between the parties are good, and you are all trying to achieve the same goal, you may be tempted not to worry too much about the way in which a notice is given: however, relationships and goals change – and this is when disputes arise.
If you have been served with a notice which you don’t want to comply with you will do everything you can to try and find a way out: any errors in the way in which the notice has been prepared or served can become an excuse for not complying. On the other hand, you could be the one who served the notice, in which case you want to make sure that it is watertight. Whichever side you are on, it is important to understand how notice must be given in a particular situation.
The elements of giving notice
There are several different elements which affect the validity of a notice: form, content, method of service and deemed date and time of service. Before you can determine whether a notice is valid you need to understand what these elements are:
- The form of the notice: this is the way in which the notice is structured and put together. It may have to contain prescribed wording, be on a specified form or be set out in a prescribed way.
- The content of the notice: this is what the notice says. It covers things such as who the notice is addressed to, any dates specified and a description of the property.
- The method of service of the notice: this is the way in which the notice must be brought to the attention of the recipient. It may be that the only acceptable method of service is to hand the notice to the recipient personally. Usually it will also be acceptable to send it by recorded or special delivery or by first class post. In some cases, service by fax is acceptable, or even service by email.
- The deemed date and time of service of the notice: this is of most importance in respect of time sensitive notices which must be served by a specific date. The deemed date and time of service is the point at which the recipient can be assumed to have received the notice regardless of whether he has received it. Deeming provisions help to avoid arguments about when the notice arrived.
How must notice be given?
The answer to this is that it depends on what kind of notice is being given. For some kinds of notice there are clearly prescribed statutory requirements. For other types of notice you will need to look at what the lease, or other relevant document, says about how notice must be given, or at the general statutory provisions when these apply.
Notice provisions are designed to protect the parties by ensuring that they can be certain a notice has been served provided that specified requirements are complied with. Most documents contain notice provisions of some kind, which tend not to deal with content but will focus on form, method of service and deemed date and time of service. However, where there are no notice provisions in the document, statutory provisions will apply. Before you give a notice it’s important that you know what notice provisions apply, to ensure you get all the essential elements correct.
There are two main general statutory provisions which may apply in respect of property related notices – these operate slightly differently so you do need to know which applies:
Law of Property Act 1925, section 196
Section 196 applies to any notice which is required or authorised to be served or given by the Law of Property Act 1925 and, importantly, also applies to any notice required to be served under any document relating to property, unless a contrary intention (for example, notice provisions in the document which say something different) appears. Section 196, and related case law, provides that:
- Form: notices must be given in writing.
- Content: notices to a tenant do not need to be addressed using the actual name. It is sufficient to just address it to “the tenant” or to “the persons interested”. Where the recipient of the notice consists of more than one person (for example, two tenants), the notice must be served on each of them.
- Method of service: notices are properly served if left at the last-known place of abode or business in the UK or, for tenants, are left at the property (“leaving” a notice includes handing the notice to someone at the property, fixing it to the door or pushing it under the door); or are sent by post in a registered letter (which includes Recorded and Special Delivery) to the last known place of abode or business in the UK and are not returned undelivered (even if the letter is never actually received).
- Deemed date and time of service: where sent by post, the notice is deemed to have been served at the time at which the letter would ordinarily be delivered. This is the first day on which the postman would ordinarily attempt to deliver the notice, regardless of whether anyone is available to receive it. Where a notice is sent by post it is sufficient that it is delivered during the last day on which the notice must be given, even if this is outside of business hours.
Landlord and Tenant Act 1927, section 23
Section 23 applies to any notice that is required or authorised to be served or given under the Landlord and Tenant Act 1927, the Landlord and Tenant Act 1954 and certain notices under the Landlord and Tenant (Covenants) Act 1995. Section 23, and related case law, provides that:
- Form: notices must be given in writing.
- Content: notices to a landlord or tenant may be served on any duly authorised agent of the landlord or the tenant. This is an agent who has been specially authorised to receive notices (for example, a solicitor) or is deemed to be authorised through his employment.
- Method of service: notices are properly served if: served personally; left at the last-known place of abode or business in England and Wales; or sent by post in a registered letter (which includes Recorded and Special Delivery) to the last known place of abode or business in England and Wales.
- Deemed date and time of service: section 23 doesn’t provide any guidance on when delivery is deemed to have occurred but the case law takes a generous approach from the perspective of the giver of the notice: where the notice is sent by Special or Recorded Delivery, the date of service is the date on which the notice is entrusted to the postal service. It doesn’t matter if the notice is not, in fact, received or even if it is returned undelivered; service will still be deemed to have occurred.
Service by some other means
It should be noted that the prescribed methods of service under statutory provisions are permissive rather than mandatory. This means that, provided the notice actually reaches the intended recipient, it is validly served even though one of the prescribed means have not been used. However, where a different method is used it will be necessary to prove that service has taken place. If the intended recipient can prove, on the balance of probabilities, that he did not receive the letter, the notice will not have been served.
For some types of notice the statutory provisions will apply regardless of what the contract says. However, for other types of notice it is possible for the parties to agree provisions relating to service between them. These may be anything from a few lines to several pages depending on the level of detail that is required. However, remember that if a document does not contain any provisions with regards to service and a notice relating to property needs to be given, the provisions of section 196 or section 23 will apply.
Where a document does contain notice provisions they will often be along the following lines, but specific provisions should always be carefully checked:
- Form: in writing; in English; and (for some types of notice) signed.
- Content: usually covers addresses for service – for example registered office or a specific address with provisions for updating this and who the notice must be marked for the attention of.
- Method of service: a detailed notice provision will set these out and will be clear as to whether these methods are mandatory or permissive. If the methods are mandatory they will be strictly applied and if they are not followed the notice will be invalid: so, for example, if personal service is required and the notice is sent by post it will be invalid even if it is fact received. Common methods include: personal delivery, post (usually Special or Recorded Delivery), fax (though there issues with this and care should be taken) or email (again, care needs to be taken with this).
- Deemed date and time of service: to make the provisions workable, notice clauses will often include provisions deeming the time at which a notice is received if it is sent by a particular method. These provisions are essential for time critical notices but it is important that provisions are appropriate and realistic: for example, they should not deem receipt earlier than the notice could in reality be expected to arrive.
What happens if you get it wrong?
The basic rule is that for a notice to be valid, all of these rules relating to form, content and method of service must be strictly complied with. If there are any defects in the way in which the notice is prepared or served, it cannot be relied upon.
However, this rule may sometimes produce results which seem overly harsh. Whilst we all intend to get notices right, mistakes are sometimes made. Depending on your perspective you may want to argue that the mistake completely invalidates the notice, or that it is still perfectly valid despite the mistake – so the question is whether a notice can be saved even if it is defective in some way.
There are numerous ways in which notices may be defective: dates can be incorrect, names can be spelt wrongly, statements can be missed out and the notice can be served late or at the wrong address. Which of these mistakes will invalidate the notice and which might you be able to get away with?
The “Mannai” principle states that minor defects in notices will not necessarily invalidate the notice provided that a reasonable recipient, with knowledge of the background, would not be confused by the error. However, Mannai will only save notices with defects in their content, not in their form or service.
This is an area of law which is very much still under development. As such there will always be some uncertainty as to whether or not any particular defect invalidates the notice. It is difficult to reconcile some of the decisions that have been made and, therefore, difficult to predict the outcome of any case where the notice is potentially defective.
It is very important that great care is taken whenever serving or receiving notices. The rules are slightly different for every kind of notice and there is a lot to think about. You need to make sure that:
- The correct form of notice is used: check whether a prescribed form is required or whether there are any requirements as to the layout and formatting of the notice.
- The content of the notice is complete and accurate: make sure that the parties’ names, the property address and any relevant dates are correct. Also ensure that all required information is included.
- The correct method of service is used: check the provisions which apply in respect of your notice; is first class post sufficient or do you need to serve your notice personally? Remember that failure to serve a notice in the correct way, even if it is in fact received and read, can invalidate the notice.
- The notice is served by any specified deadlines: remember that certain types of notice need to be served by a particular date. A notice which is served even a day late will be invalid where time is of the essence.
Preparing and serving notices can be a minefield and there is plenty of room for mistakes. Innocent and minor errors with regards to form, content or service of a notice can potentially invalidate the notice and may prove very expensive.