Serving a notice is easy, right? You type it up, check it through and pop it in the post to the recipient. Done and dusted with no need to take legal advice on such a simple process. Until a few months later when the recipient claims not to have received it or that it didn’t get to them in time or that it’s invalid.
Service of a notice seems such a straightforward task that often people don’t even consider obtaining legal advice on the issue or instructing solicitors to deal with it on their behalf. However, service of a notice is often the crucial first step to getting a property related matter right, such as terminating a lease or exercising a contractual or statutory right. The consequences of getting it wrong could be fatal to achieving your objectives and have a far-reaching financial and legal impact. Imagine, for example, that you want to exercise a right under your lease to determine the term 5 years early. Getting it wrong could mean you are on the hook for another 5 years of rent and other sums due under the lease – can your business really afford that?
These are our key tips for getting it right but we always recommend you seek legal advice. A small outlay now could save you thousands of pounds (and a lot of hassle) in the long run:
- Check and comply with any contractual provisions relating to the service of notices; most leases and contracts will include such a provision.
- What does the document say about the content of the notice (is there a specific form of notice attached to the document that must be used)?
- How and where should it be delivered to? In the general conduct of your business you may be corresponding with the recipient at one address, but a notice may need to be sent to a different place. Frequently we will serve the same notice at multiple addresses to ensure it is adequately served. The issue is often not whether a notice is received but whether it was served in the correct manner and at the correct place.
- Unless a contract identifies the specific address at which a notice must be served we will usually send it to the registered office of the recipient (if a corporate entity), the premises and any other address known to the sender.
- When should you serve the notice? There may be a minimum period of notice that has to be given.
- Is there a deemed service provision which will affect the date on which service is deemed to have taken place? This could assist you in that, in the eyes of the law, the notice may be considered to have been received even if it was not, but it can also mean that you have to send a notice earlier than you thought.
- Statutory requirements – there may be statutory requirements that you have to comply with instead of, or in addition to, contractual requirements. Section 196 of the Law of Property Act 1925 is the most commonly encountered and will apply to any notice required to be served by an instrument affecting property, unless a contrary intention appears. Essentially this is the default provision.
- Section 196 requires the notice to be:
- In writing; and
- Left at the recipient’s last known place of abode or business in the UK or, for tenants, at the demised property; or
- Sent by post in a registered letter (this includes Recorded Delivery and Special Delivery) to the recipient’s last known place of abode or business in the UK, so long as the letter is not returned undelivered.
- Under section 196 the notice is deemed served at the time it was left at the address or, if posted, at the time which it would be delivered in the ordinary course of things.
- Section 23 of the Landlord and Tenant Act 1927 may apply in place of section 196 e.g. notices served under the Landlord and Tenant Act 1954.
- The requirements under section 23 are broadly the same as under section 196 but under section 23 a notice is deemed to be served at the time it was left at the recipient’s address or, where posted, at the time it was posted.
- Always keep proof of delivery, however the notice is sent.
Finally if you receive a notice then always consider seeking legal advice as to whether it is valid. For every person out there wanting to serve a valid notice valid there is someone else who is potentially looking to frustrate it!
