Serving notices - lost in the post: when tenants claim non-receipt

It is very common for landlords and tenants to serve notices or documents on one another, for example, if one wants the tenancy to end.

However, serving notices can be difficult if one party says they never received the notice and the other party needs to prove that it was received.

The tenancy agreement usually sets out how notices must be served and might even include provisions about when a notice is deemed served.

Often, a notice service clause states that a notice can be served by first-class post, recorded or special delivery, or by hand.

Even if you follow the procedures set out in the tenancy agreement and send things by post, problems can still arise if you cannot obtain confirmation from the Post Office or other delivery service that the letter has been delivered.

With first-class post, you don’t get any form of written or other confirmation that an item has been delivered. You would only know an item has not been delivered if it is returned to the sender, and that might take several months. You may never know it hasn’t been delivered.

Being able to prove that an item has arrived can have very important consequences, and in certain circumstances, it can prevent a landlord from regaining possession of their property.

The recent case of Khan v D’Aubigny [2025] EWCA Civ 11 (‘Khan v D’Aubigny’) gives some context to some of the issues mentioned above.

As all residential landlords should be aware, the necessary prescribed information (including Gas Safety Certificates, Energy Performance Certificates, and the How to Rent booklet) must be served on the tenant before the commencement of the tenancy. Without this, a landlord’s ability to serve a Section 21 notice on a tenant will be adversely affected.

The facts

In Khan v D’Aubigny, the landlord served the relevant prescribed information by first-class post. However, the tenant claimed they had never received this.

At an earlier hearing, the Court held that the landlord was entitled to rely on the presumption of service in accordance with Section 7 of the Interpretation Act 1978 (‘Interpretation Act’) alongside the contractual provisions set out in the tenancy agreement.

The tenant then appealed this decision, arguing that the Interpretation Act did not apply to sending the prescribed information, so the landlord should not be able to rely on it. The tenant also argued that the tenancy agreement did not cover the methods of service of the prescribed information.

The Court of Appeal

The Court of Appeal considered whether the presumption of service in Section 7 of the Interpretation Act 1978 applies where a statutory provision requires a document to be given or provided to someone but does not expressly refer to that being done by post.

The Court of Appeal agreed with the tenant and decided that the Interpretation Act could not be relied upon. This is because the relevant law makes it compulsory for the landlord to “give” the tenant the relevant documents. While the landlord here chose to do this, the provisions did not require the documents to be given by post. You are required to “give” a Section 21 notice, and in the eyes of the Court, the Interpretation Act did not properly apply, and therefore, the landlord could not rely upon the presumption of service.

However, the landlord was successful because of a specific clause within the tenancy agreement relating to service. That clause provided that any notice sent to the tenant in relation to the tenancy “shall be deemed to have been properly served if … sent by first class post to the property” and if served in that way “it shall be deemed to have been received … if sent by first-class post, on the second working day after posting”.

The Court confirmed that the sending of the prescribed information constituted the giving of a “notice” for the purposes of this clause, and as such, it was deemed that the relevant documents had been provided to the tenant. As a result, the validity of the Section 21 notice was upheld.

How does Khan v D’Aubigny affect landlords and tenants?

This decision is important. Even though the tenant convinced the Court that they likely did not receive the prescribed information, this alone was insufficient to overcome the landlord’s evidence proving service.

The case has shown how important the drafting of a tenancy agreement is. A comprehensive and broadly scoped notice clause could be key in these types of situations, allowing a landlord to comfortably rely on post as a method of service to give a tenant information about the property.

The principle derived from this case will hopefully mean that many landlords will no longer be stuck in a situation where a tenant claims to ‘not have received’ something in relation to their tenancy, which then causes issues later down the line for the landlord.

Does this matter if the Renters’ Rights Bill will soon be seeing to the abolition of Section 21 notices?

The answer is yes, it does. On 4 February 2025, the House of Lords debated the Renters’ Rights Bill and proposed numerous amendments, one of which no longer sees the abolishment of Section 21 in its entirety. It is proposed that a ‘small landlord’, meaning a landlord with fewer than five properties, will still be able to serve Section 21 notices upon the bill being implemented.

Further to this, the scrapping of Section 21’s for everyone else has also been delayed until an assessment of the possession process is complete and the Secretary of State has been satisfied that the court system is deemed to have sufficient capacity to deal with the influx of possession proceedings.