Originally published December 2003
Recent case law suggests that documents sent by recorded delivery post are likely to be deemed served even if it can be shown that they are unlikely to have been received by the addressee.
Pursuant to the Recorded Delivery Act 1962, a document which may be sent by registered post can be served by recorded delivery. Therefore, notices served under section 23 of the Landlord and Tenant Act 1927 or section 196 of the Law of Property Act 1925 may be served by recorded delivery.
Notices sent by recorded delivery are deemed served on the day of posting, not on the day they would normally be delivered, irrespective of whether they are returned as uncollected to the sender by the Post Office.
Section 23 of the Landlord and Tenant Act 1927 provides as follows:
"Any notice…under this Act shall be in writing and may be served…by sending it through the post in a registered letter" addressed to the last known place of abode in England and Wales.
Section 196 of the Law of Property Act 1925 provides as follows:
"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 … at the last-known place of abode or business…and if that letter is not returned…undelivered, and service shall be deemed to be made at the time which the registered letter would, in the ordinary course, be delivered."
In the case of Blunden v Frogmore Investments Limited  EWCA civ 573, the tenant held a lease of a shop in the Corn Exchange in Manchester which was badly damaged by an IRA bomb. The lease provided that in the event of the premises being wholly or substantially unfit for occupation, the landlord could serve notice to quit. The landlord served notice pursuant to the lease and a notice pursuant to section 25 of the Landlord and Tenant Act 1954 by recorded delivery.
The tenant was away from home when the notice was delivered and by the time he received the recorded delivery card, which did not contain the sender’s name nor indicate the contents of the envelope, the notices had been returned to the landlord’s solicitor undelivered. The Court of Appeal held that the notices had been validly served even though they had not been received on the grounds that the statutory provisions establish a fair allocation of the risks of any failure of communication and avoid disputes on issues of fact as to whether letters had been received, went astray or were overlooked.
In another recent case, CA Webber (Transport) Limited v Railtrack Plc  EWCA civ 1167, the Court of Appeal rejected the argument that deeming notices served on the date of posting, not the date of receipt contravenes the European Convention on Human Rights. They held that the rule is not unfair or overly favourable to landlords but provides certainty and avoids disputes.
This follows the approach of the Court of Appeal in Beanby Estates Limited v Egg Stores (Stamford Hill) Limited  1WLR 2064 where service of a section 25 notice by recorded delivery reduced the four month period which a tenant has to make an application to the court for a new tenancy by two days. The tenant had made the application within 4 months of receipt of the notice but as the notice was deemed served on the day of posting, the application was made one day late and was struck out.
- A notice sent by recorded delivery is likely to be deemed served even if it can be shown that it was not received.
- A notice sent by recorded delivery will be deemed served on the day of posting, not on the day it would normally be delivered.
- Service by ordinary post requires proof of receipt, so landlords wishing to avoid protracted arguments as to when, or indeed, whether something was received are likely to choose recorded delivery instead.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.