We are receiving numerous questions from agents along the above lines.  Those contacting us are saying that access to their offices is currently restricted and they have no facility (remotely) to undertake the task of printing and sending physical demands to property owners.  Accordingly, they are asking that “given the special circumstances and the guidance from the Government not to travel unless absolutely necessary, surely it is sensible to email demands during this period instead of posting them?”

Whilst this is an entirely sensible and reasonable question in this current unprecedented time, and whilst no doubt most of the recipients of demands, even if sent by email only, would receive those demands, the issue is in fact whether service of a demand or notice by email alone will amount to valid service.  The answer to that question, other than in specific circumstances, is ‘no’.

The position is that demands must be served in accordance with the contractual formalities imposed by the lease or transfer agreements relating to the property.  Some agreements will stipulate both when and how notices, including demands, are to be provided to the property owner.  Those agreements might refer to and incorporate the provisions of s.196 Law of Property Act 1925 (“s.196LPA”).  Under that provision service of a demand (or notice) by registered post or hand delivery to the property owner’s address will amount to good service, whether or not the property owner actually receives it (unless returned by Royal Mail).   

It is also the case that s.196LPA (by virtue of s.7 Interpretation Act 1978) will enable service by standard First Class post where (unless the contrary is proven) the sender can show:

1. The demand was correctly addressed;

2. The postage for the letter was pre paid (i.e. it was franked or stamps added for the correct postage before it was sent);

3. The demand was actually posted.

As an aside, it is worth noting that where an agreement does not incorporate s.196LPA, it is for the sender of the demand to show that it was actually received by the property owner in order to show good service.

Service by email is unlikely to amount to good service save for where the property owner has expressly requested and authorised service in that format.  In the absence of such (written) agreement, service by email alone is not going to amount to good service even if it is more likely than not that it will have come to the attention of the property owner. 

Conclusion 

To be enforceable, and in the absence of an agreement with the property owner to receive demands by email, demands must be sent in hard copy by post notwithstanding the current circumstances.

It is always good practice to also send demands by email but this should only ever be in addition and secondary to the sending of the hard copy demand by post, in accordance with the requirements of the lease/agreement relating to the property to which the demand relates.

Should you have any questions in relation to the above, then please do not hesitate to contact Kevin Lever on Kevin.Lever@kdllaw.com or 01435 897 297. 

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