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If there are two golden rules of thumb for serving property notices, they are:
- Rule 1: Never DIY – always instruct lawyers; and
- Rule 2: Always serve notices in multiple ways (i.e., by hand, 1st class, registered/special delivery).
Now most property litigators might say that notices under the LTA 1954 are an exception to 'Rule 2'. Why? Because special service rules (under section 66 LTA 1954 and section 23 LTA 1927) apply under which service by registered post/recorded delivery is pretty much bulletproof. Why? Because, if you address the notice correctly and you send by that method, long established Court of Appeal authority has held that the notice is deemed served when it goes into the post office system, whether or not it is actually received. If so, there's a marginal risk of that method failing so no need to serve in multiple ways.
That has been the accepted wisdom for many years – even if seasoned property litigators have still served LTA 1954 notices in multiple ways on a precautionary, 'belt and braces' basis – especially if there's any doubt about the address for service, or service abroad is required.
However, the High Court decision in Lamba v Enfield LBC has caused a major stir by deciding that this accepted wisdom did not apply on the relevant facts. In that case, the landlord had served a s.25 notice by registered post and the notice had been returned as undelivered. Relying on the accepted wisdom, the landlord argued that service was still effective. The High Court disagreed. The key point was that the lease expressly provided that notices "under or in connection with this lease .. shall" be served in accordance with section 196 LPA 1925. The Court found that a section 25 notice was caught by this wording and that the lease therefore excluded service under section 66 LTA 1954. Under section 196 LPA 1925, a notice is only treated as served if not returned undelivered. As the notice had been returned, that was proof of non-service.
The decision has surprised practitioners and is a reminder that one can never be too careful when serving property notices. It is true to say that the decision has been questioned. First, it was an ex-tempore judgment (i.e., given orally at a hearing with limited advocacy on the issue) and no judgment has yet been published. Secondly, it is questionable whether the lease provision does apply to statutory notices. Thirdly, it is questionable whether the lease provision should have been treated as setting out a mandatory and exclusive mode of service under s.196, as opposed to providing for an additional method of service under LTA 1954. It will be interesting to see if the decision is appealed.
Pending that, however, the new rules of thumb will be: check the lease very carefully and, if in any doubt, serve multiple ways. All in all, Rules 1 and 2 remain as apposite as ever.
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.
