Every now and then, and frequently in the property world, there will be a requirement for the service of a formal notice on a party with whom you are dealing.  Whether that is to terminate a residential tenancy or to consult with a long leaseholder on a proposed major works project, the need to simply “get things right” in drafting the notice and in how you serve it will always apply.

Irrespective of the notice to be relied upon, a landlord, an RTM or RMC or their agent must ensure that the notice :-

• is in the correct form for the intended action;

• is itself validly drafted; and

• is then validly served.

When serving any notice that you intend to rely upon later you should always consider the following:

Before drafting the notice

• Do you have the correct information on which the notice is to be based?

• In the case of a tenancy agreement, this will need to be the latest tenancy agreement granted, as well as any extensions to the last term.

• In the case of a long lease, do you have the correct and current lease.

• You need to ensure that you understand the terms of the agreement and how that affects the notice to be served. Legal advice should be sought if you are unsure as to the type or nature of agreement and how that affects the notice required for your specific action. Don’t be “brave” - get advice.

• Check carefully that you have complied with any statutory or contractual requirements to enable you to serve the particular notice.  Statutory or contractual restrictions on how, when and where to serve notices will often apply. 

Exercising break options

In exercising a break option in a tenancy agreement, the terms of the break must be considered carefully :-

• Has the relevant time period or date passed, or conduct of the tenant required occurred, to enable you to exercise the break?

• What is the period of notice required to exercise the break?

• At what address is the break notice to be served?

• Is there a requirement as to the method of service, i.e. recorded delivery post or personal service etc.?

For fault based notices

• Are the complaints valid by reference to the relevant agreement, e.g. is there in fact a breach of the terms of the agreement?

• Ensure that you have adequate and good quality evidence to support the complaints.

• Where witness evidence is going to be required to support a claim, ensure that the witness(es) are aware of the requirement for them to attend and give that evidence orally at any planned or potential hearing(s).

 Drafting the notice

• Ensure that the names and the addresses of the relevant parties are exactly as shown on the agreement. 

• Where required, ensure that sufficient particulars are given as to the reasons for the notice.

• Check any expiry date stated on the notice complies with any statutory or contractual minimum period.  Where possible, be generous with time periods, especially to allow for service times.  We suggest allowing at least three days to any prescribed notice period to avoid any future disputes. 

Serving the notice

• What does the agreement or any statutory instrument/regulation say regarding the method and place for service?

• Where the agreement makes no provision regarding service, and where practicable, always serve notices by hand at the property or relevant address for service. This is particularly the case for notices relating to tenancies. Personal service is preferable, e.g. in the tenant’s hand, otherwise through a letterbox exclusively serving the property (not a communal letterbox).

• Unless absolutely necessary, never serve notices by post only.  Where you hold an email address for the intended recipient, and whilst not valid service on its own, send a copy of the notice by email too. It will rarely harm.

• Accurate records must be kept of the date, time and method of service, and by whom. Service is often a cause for dispute, therefore contemporaneous records will be required to evidence good service of the notice(s).

If in doubt, always consult us for guidance before serving the notice. Invalid content of, or invalidly served notices are the likeliest cause of delays in obtaining the result desired from the notice. It is essential to minimise the potential for such delays and the associated legal costs by ensuring notices are correct at the point of service.

Should you have any questions in relation to the above, then please do not hesitate to contact Kevin Lever on Kevin.Lever@kdllaw.com or 01435 897 297. 

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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