Learning the law: service of property notices by email

Notices play a vital role in creating, implementing, maintaining and terminating legal rights for landlords and tenants of agricultural, commercial and residential tenancies. The statutory provisions which govern the service of notices vary between the different statutory regimes, so it is vital that the correct set of rules is followed, if a notice is to be served validly.

With so much correspondence between landlords and tenants now being by email, we consider the extent to which notices can validly be served by email under the agricultural and commercial statutory regimes and the risks of using this method of service.

Commercial lettings: Landlord and Tenant Act 1954

The Landlord and Tenant Act 1954 (LTA 1954), section 66(4), provides that section 23 of the Landlord and Tenant Act 1927 (LTA 1927) shall apply to any notices required to be served under the LTA 1954. Section 23(1) of the LTA 1927 provides that a notice may be served in a number of ways, including:

• personal service
• leaving it at the recipient’s last known place of abode
• sending it by registered post or recorded delivery

Although section 23 of the LTA 1927 expressly refers to the above modes of service, it is widely accepted that the provision is permissive, rather than mandatory; a notice may be served by one of the three methods detailed in section 23(1), it does not say a notice shall be served by those methods. Accordingly, other methods of service, such as email, may be valid, depending on whether there are additional express notice provisions in the lease or tenancy agreement. It may however be necessary to prove that some other method of service has resulted in actual service, which could be problematic.

It is common in commercial leases to see the express incorporation of Section 196 of the Law of Property Act 1925 (“s196”). This section sets out a number of rules and deemed service provisions which must be followed in respect of any notice served under that Act (eg forfeiture notices) or in respect of any notice required to be served by any instrument affecting property, unless a contrary intention appears. Such ‘instruments’ would include leases. If section 196 applies or is expressly incorporated into a lease or tenancy, the deemed service provisions will ensure the relevant notice is validly served, provided one of the specified methods (leaving at last known place of abode or business and post) are used. If in those circumstances a notice is not served by a section 196 method, service may be invalid (E.ON UK plc v Gilesports Ltd [2012]). Therefore, a prescribed method should be followed.

Agricultural Holdings Act 1986

The provisions relating to methods of service of notices under the Agricultural Holdings Act 1986 (AHA 1986) are contained in section 93 of the Act. Section 93 provides that any notice served under the Act shall be duly given or served on the relevant person if it is:

• delivered to him; or
• left at his proper address; or
• sent to him by post in a registered letter or by recorded delivery

The Act (obviously) does not allow for service by email and this position has not been changed by subsequent legislation. It is also generally considered that a notice served by email cannot be said to have been delivered to the recipient or left at his proper address. Accordingly, pending any further developments in the law, service by email under the AHA 1986 is unlikely to be valid.

Agricultural Tenancies Act 1995

Unlike the previous statutes, the Agricultural Tenancies Act 1995 (ATA 1995) does contain flexibility to allow for the service of notices by email. Section 36 of the ATA 1995 provides that a notice is duly given to the intended recipient under the Act if it is:

• delivered to him;
• left at his proper address; or
• given to him in a manner authorised by written agreement between the parties to the notice.

It follows that, provided that there is specific written agreement authorising service of notices by email, this method of service will be sufficient (although not in relation to the Section 1 notice which will be exchanged before the written agreement comes into effect). Where there is no such agreement, section 36(3), ATA 1995 makes is clear that notices given under the Act will not be validly served if transmitted via electronic means (e.g. by email).

If there is a written agreement allowing service by email, it would be sensible for a draftsman to include evidential safeguards within the notice provisions, as discussed below.

Risks of service by email

Where permitted, service by email can be useful. However, it does not come without risks. These include:

• difficulties in evidencing safe receipt • ability to forge or falsify an email
• interception by a third party
• emails failing to send, arriving late or not at all, or being deleted
• uncertainty of whether the email will be brought to the attention of the intended recipient
• technical issues interrupting service by email
• change in the formatting of an email once sent; causing it to become unintelligible or altering its meaning

In practice, given the potential problems of service by email, it is often found to be expressly excluded.

Issues to consider if email is to be used

If email is permitted to be used, consider the following:

• What form of electronic communication can be used? Consider whether notification via e.g. Dropbox is included. Note however that delivery via an ‘electronic messaging system’ in relation to a commercial agreement did not include email: Greenclose Ltd v National Westminster Bank plc [2014]
• Consider carefully which email address to use, especially where a large organisation is involved. If a specific person is to receive the notice, consider what should happen if that person leaves the organisation?
• Is email appropriate for all types of notice to be given under the agreement, or should it be restricted to non essential notices, with more important ones (eg termination) still being required to be in writing?
• When is legal delivery to occur for the purposes of the contract? Is proof of delivery (e.g. a receipt) required?
• Consider what proof will be available that the email has been sent. Consider including a deemed delivery provision (although likely recipients may well want to resist this)
• Consider whether the notice should also be sent by post or delivered by hand to ensure it is received by the relevant individual

Conclusion

In the commercial landlord and tenant sector, the emailing of property notices is generally only used in addition to the usual methods of service, where the deemed service provisions provide assurance that the notice has been validly served. In the agricultural sector the flexibility introduced in 1995 by the ATA 1995 does allow parties to choose to allow service of notices by email. Those express provisions will have to be drafted carefully however to address the inherent risks associated with emails. Particular care will also be needed when drafting longer term leases to anticipate future developments in electronic communication.