UK Landlord Forum / Life

Hi all,
So in the contract that my estate agency did, it was stated that the tenant has to give me notice if he wishes to leave the property via first class post.
The tenant sent the notice to my address via Royal Mail registered delivery. However I never received the notice or a While you Were Out card from Royal Mail.
The tenant sent me the Royal Mail reference number and I saw that it was indeed sent to my flat but I never received it. 
2 weeks later the tenant informed me via text that he would like to leave the property. I said that I will be taking the date that the text was sent to me as the start of the notice period (since this was the 1st time that the tenant told me that he wants to leave) and not the registered post that I never received.
The tenant is not happy with that and is insisting on the notice to start from the date that he sent the Registered Post, although I never received the post.

Another estate agent told me that the notice has to be on the rent due date. If it is not, then it will come in effect on the rent due date.

Any help from anyone on this please?

Thanks very much. 

If your contract specifies that your tenant must notify you by post, and that's what the tenant has done, then it's hardly your tenant's fault that you didn't receive it.

Does your contract specify anything about the notice running from the rent due date?

It is common practice - expected, really - that notice must correspond to a rent boundary, i.e. the day before the next rent is due. So if your rental dates are from the 6th to the 5th of each month, then notice would be for the 5th of a month... not some other arbitrary date the Tenant might like, based on the date they sent their notice. In every contract the notice required (for a SPT) is always "at least 1 month" - the "at least" is important, it's not 1 month from whenever that notice is given... it's "at least" 1 month, plus the days to the next rent boundary. It's the same for the Landlord, it is always "at least 2 months".

Your contract should be perfectly clear on this, and I would assume that it is.

Now, believe it or not... registered (Recorded?) delivery isn't the best way to prove something was sent, and is therefore considered delivered in our reliable Royal Mail world... it's actually to send 2 copies from 2 different Post Offices and to obtain a free proof of posting. If the Tenant had proof of posting that would equate to proof of delivery in 2 working days.

So I never signed for the post, because I never received a While you Were Out Card. When I checked the reference on the Royal Mail site that the tenant gave me I saw that it said that it was kept at the Royal Mail's depot. However by the time the tenant informed me about it and me being able to go and get it, the post was returned to the sender.
Therefore can I say that the notice was not served because as the tenant can clearly see from the RM website I never received the post?

Also there is no mention on the contract that the notice must correspond to a rent boundary. Do I assume it does? Or does the contract have to state it?

Thank you

Be wary of advice from a forum and always do your own research

OK so a few things here....

You need to check your tenancy agreement most likely it either says (or by omission means) that a notice will be served according to section 196 of the Law of Property Act 1925

I've copied para 4 below (as para 3 is about leaving at the abode blah blah which your tenant didn't)

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

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. 

So legally your tenant will be considered to have served notice correctly the time of which would be per ordinary course of delivery. 
HOWEVER see the embolden text.  If you can prove the letter was not delivered and was returned to the sender AND your contract refers to notice per section 196 of the Law of Property Act 1925 then
1. the initial letter is not served properly
2. the text message would not suffice either (as not a letter).

HOWEVER there is case law that states that where a notice is served by a primary method authorised by section 23 of the Landlord and Tenant Act 1927, it matters not whether the notice was actually received....copied below:

1)Any notice, request, demand or other instrument under this Act shall be in writing and may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there

So check what your agreement actually says.

The other point a couple of posts refer to is "common practice ..... that notice must correspond to a rent boundary", actually (and I assume this is now a monthly periodic tenancy (?)) it is more than mere common practice it is actually common law.
The case of Laine v Cadwallader (referred to for those wishing to google) that the length of the notice to quit (which is what he is actually serving) has to be “equal to at least a period of the tenancy and expiring at the end of the period of the tenancy”.  The 'end of the period of tenancy' in a periodic tenancy is each month (again I assume you are charging rent monthly).
Therefore the contract does not need to specify this.

As an aside the words "at least" have no bearing in themselves on the end of a tenancy period and a judge is highly unlikely to read in words to that effect.  If you wanted to be explicit you would need to add words such as "and in the event the tenancy has become a Periodic Tenancy such notice shall not take effect until the day on which the tenancy period in which the notice was served has ended" or other such construction.
I doubt you will find this text in your contract as it is not necessary as explained above.

As a final point AND NOT LEGAL POINT, a notice is best served using ordinary first class post and getting a certificate of posting.  This will meet the requirements of section 196 of the Law of Property Act 1925 without the risk of a return to sender issue that your tenant now seems to face.

Best of luck

Quote from: kesm on October 03, 2017, 08:06:31 AMSo I never signed for the post, because I never received a While you Were Out Card. When I checked the reference on the Royal Mail site that the tenant gave me I saw that it said that it was kept at the Royal Mail's depot. However by the time the tenant informed me about it and me being able to go and get it, the post was returned to the sender.

Blame the Royal Mail.

Quote from: kesmTherefore can I say that the notice was not served because as the tenant can clearly see from the RM website I never received the post?

No, of course not - the whole concept would be ludicrous if you think about it. I think you need to suck this up rather than scrapping over it, because the next point is in your favour (I presume). A basic tenet - a Landlord should never try to force a Tenant who doesn't want to be at their property to remain there.

Quote from: kesmAlso there is no mention on the contract that the notice must correspond to a rent boundary. Do I assume it does? Or does the contract have to state it?

It does sound like you've got a pretty bad contract in place... mine is clear on this, but it certainly is common practice and always understood to be the case, I believe. I will not cite case law (I will resist the temptation).

This is incredibly useful. Thank you so much.
So there is no reference to section 196 of the Law of Property Act 1925. The tenancy agreement is one that the estate agency provided and they claim it is ALRA provided.

Overall can I go back and tell them that the notice will be served from the rent due date and not when they sent me the registered by Royal Mail post?

Quote from: theangrylandlord on October 03, 2017, 11:38:16 AM
Be wary of advice from a forum and always do your own research

OK so a few things here....

You need to check your tenancy agreement most likely it either says (or by omission means) that a notice will be served according to section 196 of the Law of Property Act 1925

I've copied para 4 below (as para 3 is about leaving at the abode blah blah which your tenant didn't)

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

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. 

So legally your tenant will be considered to have served notice correctly the time of which would be per ordinary course of delivery. 
HOWEVER see the embolden text.  If you can prove the letter was not delivered and was returned to the sender AND your contract refers to notice per section 196 of the Law of Property Act 1925 then
1. the initial letter is not served properly
2. the text message would not suffice either (as not a letter).

HOWEVER there is case law that states that where a notice is served by a primary method authorised by section 23 of the Landlord and Tenant Act 1927, it matters not whether the notice was actually received....copied below:

1)Any notice, request, demand or other instrument under this Act shall be in writing and may be served on the person on whom it is to be served either personally, or by leaving it for him at his last known place of abode in England or Wales, or by sending it through the post in a registered letter addressed to him there

So check what your agreement actually says.

The other point a couple of posts refer to is "common practice ..... that notice must correspond to a rent boundary", actually (and I assume this is now a monthly periodic tenancy (?)) it is more than mere common practice it is actually common law.
The case of Laine v Cadwallader (referred to for those wishing to google) that the length of the notice to quit (which is what he is actually serving) has to be "equal to at least a period of the tenancy and expiring at the end of the period of the tenancy".  The 'end of the period of tenancy' in a periodic tenancy is each month (again I assume you are charging rent monthly).
Therefore the contract does not need to specify this.

As an aside the words "at least" have no bearing in themselves on the end of a tenancy period and a judge is highly unlikely to read in words to that effect.  If you wanted to be explicit you would need to add words such as "and in the event the tenancy has become a Periodic Tenancy such notice shall not take effect until the day on which the tenancy period in which the notice was served has ended" or other such construction.
I doubt you will find this text in your contract as it is not necessary as explained above.

As a final point AND NOT LEGAL POINT, a notice is best served using ordinary first class post and getting a certificate of posting.  This will meet the requirements of section 196 of the Law of Property Act 1925 without the risk of a return to sender issue that your tenant now seems to face.

Best of luck

Overall can I go back and tell them that the notice will be served from the rent due date and not when they sent me the registered by Royal Mail post?

I think that is a fair middle ground rather than telling them they actually haven't served a valid notice (note the LPA 1925 applies by default). 
Its easier to explain to them 'that's just how it works' and also gets them out reasonably quickly and hopefully a letting agent can corroborate 'that's how it works'.

Just check you have a decent deposit though as you may have a very unhappy tenant in your property and depending on the circumstances and what they are like they can do an awful lot of damage if they wanted to.

Personally I have really tried hard to re-let a property and do the tenant a favour and this has always paid itself back in very low hassle repossession of the property and no deposit disputes.

Best of luck

 Thanks! I am not looking for a middle ground but for what's legal.

Can I go back and tell them that the notice will be served from the rent due date and not when they sent me the registered by Royal Mail post?

You can tell them notice will be effective from the rent due date and not when they sent you the registered by Royal Mail post.

Best of luck

Quote from: theangrylandlord on October 07, 2017, 02:09:43 PM
You can tell them notice will be effective from the rent due date and not when they sent you the registered by Royal Mail post.

Best of luck

Thanks but legally is that right?

Yes.