Deemed delivery under section 196 of Law of Property Act 1925
Slippery Sam is expecting postal delivery of a notice that will do him no good at all if it arrives within the time specified in a lease. Would it pay him to shut up shop until the notice period has expired?
The answer has to be “No”, provided that the sender: (a) uses registered mail or recorded delivery; and (b) allows sufficient time for the letter to be delivered in the ordinary course of the post. If that has been done, the question of actual receipt simply does not arise: see the deemed delivery provisions of section 196 of the Law of Property Act 1925, as applied in the rent review case of WX Investments Ltd v Begg [2002] EWHC 295; [2002] 50 EG 115. The decision of Patten J, who refused to follow a 1989 case going the other way, is explained and welcomed by Sandi Murdoch in
Deemed delivery has not taken place where the letter is returned through the Post Office undelivered (although that is no help to Sam, who is trying to beat the rap by a few days).
Again, the section does not apply to a notice that cannot be described as one “required to be served by any instrument affecting property” within the meaning of subsection (5) of the section. On this point, a leading text comments, although with little enthusiasm, that it might be argued that a notice served pursuant to a rent review clause is not “required” in the above sense: see Hill and Redman’s Guide to Landlord and Tenant Law para 7.141.
It is suggested that the mere possibility of such an argument being raised justifies the practice, as instanced in WX Investments, of expressly incorporating the provisions of section 196 into the lease.
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Deemed delivery under section 196 of Law of Property Act 1925
Slippery Sam is expecting postal delivery of a notice that will do him no good at all if it arrives within the time specified in a lease. Would it pay him to shut up shop until the notice period has expired?
The answer has to be “No”, provided that the sender: (a) uses registered mail or recorded delivery; and (b) allows sufficient time for the letter to be delivered in the ordinary course of the post. If that has been done, the question of actual receipt simply does not arise: see the deemed delivery provisions of section 196 of the Law of Property Act 1925, as applied in the rent review case of WX Investments Ltd v Begg [2002] EWHC 295; [2002] 50 EG 115. The decision of Patten J, who refused to follow a 1989 case going the other way, is explained and welcomed by Sandi Murdoch in A step in the right direction Estates Gazette 23 November 2002, p145.
Deemed delivery has not taken place where the letter is returned through the Post Office undelivered (although that is no help to Sam, who is trying to beat the rap by a few days).
Again, the section does not apply to a notice that cannot be described as one “required to be served by any instrument affecting property” within the meaning of subsection (5) of the section. On this point, a leading text comments, although with little enthusiasm, that it might be argued that a notice served pursuant to a rent review clause is not “required” in the above sense: see Hill and Redman’s Guide to Landlord and Tenant Law para 7.141.
It is suggested that the mere possibility of such an argument being raised justifies the practice, as instanced in WX Investments, of expressly incorporating the provisions of section 196 into the lease.
Related item:
PP 2002/112
