What presumptions of service apply to notices sent by post?

  To prove that a notice has been served, the sender must show that it came to the attention of the person to whom it was addressed. This can be difficult to do, especially if the notice was sent by post. However, there are statutory presumptions of service that may assist. Section 196 of the Law of Property Act 1925 applies to notices required or authorised to be served by the Act, as well as to any notice “required to be served” by any instrument affecting property (unless a contrary intention appears). In addition to permitting service of notices at leased premises, or by leaving them at the tenant’s last-known place of abode or business, it authorises service by recorded delivery post and, if a notice is not returned undelivered, service is deemed to have been effected at the time when the recorded letter would ordinarily have been delivered. In Southwark London Borough Council v Akhtar [2017] UKUT 150 (LC); [2017] PLSCS 95, the tenant claimed that she had not received a notice under section 20B of the Housing Act 1985 (notification of costs incurred but not yet charged to the tenant). Did section 196 apply to the service of the notice? The tribunal rejected the landlord’s argument that the notice was “required to be served” by the parties’ lease. It explained that landlords are not “required” to serve section 20B notices (although, in the absence of such notices, service charges that are more than 18 months old become irrecoverable). However, the lease specifically provided that section 196 would apply to “any notice under this lease”. The tribunal ruled that, because the section 20B notice enabled the landlord to do something prescribed by or referred to in its lease (ie to recover service charges), it was a notice “under” the lease. Therefore, section 196 did apply. However, the landlord had sent its notice by ordinary post, and not by recorded delivery. So the presumption of service in section 196 was not available. Was section 7 of the Interpretation Act 1978 engaged?  This provides that, unless a contrary intention appears, “where an Act authorises or requires any document to be served by post”, service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected when the letter would be delivered in the ordinary course of post. The tribunal ruled that section 7 operates when section 196 applies because section 196 authorises postal service. The tenant argued that section 7 applies in conjunction with section 196 only when a statute directly authorises or requires service by post. In other words, it does not apply just because parties have incorporated section 196 into their lease. But the tribunal disagreed. It ruled that, where parties have said that a statutory provision is to apply, they are not applying it in a limited form unless they say so. Consequently, the presumption of service in section 7 was available to the landlord. In such cases, once a landlord has proved that its notice was properly addressed to the property, pre-paid and posted, it need do nothing more, unless the contrary is proved. If the contrary is proved, then the landlord must then show on the balance of probabilities, and without the help of the presumption, that its notice was actually received. Allyson Colby is a property law consultant