Nowadays most people prefer to send and receive correspondence by email rather than in the post.  When it comes to the service of demands and notices relating to leases or transfers however, the question is whether service by email amounts to valid service of that document.

We previously wrote on this issue back in 2020 during the COVID-19 lockdown given the then "no contact" directives (see here).  However, by way of a reminder, and given that we are now in more “normal” times, we provide a reminder of this often misunderstood (and some might argue inconvenient) matter once more.

We have set out in this Legal Update a step by step guide of how demands and notices should be served and the circumstances when you can and cannot serve by email.

Knowing which method to choose for service of demands and notices

To ensure that a demand is validly served you must first look to the provisions in the lease or transfer.

Some leases/transfers will specify methods of service.  Many leases/transfers will state that section 196 of the Law of Property Act 1925 (“s196 LPA 1925”) applies in respect of service of demands and notices but not all will do so.  Some leases/transfers will be silent as to how demands and notices should be served. 

Almost all leases/transfers, except for perhaps the occasional very modern lease/transfer, will not expressly make provision for service by email.

Where a lease or transfer specifies that service of demands and notices can be served by email

Most leases/transfers will not expressly provide for service by email but we are aware of some modern well drafted leases/transfers that do provide for this method of service.  Where the lease/transfer does specify service by email, the demands and notices can be sent by email.

Where a lease/transfer refers to s196 LPA 1925

If the lease/transfer states that notices are to be served in accordance with the requirements of s196 LPA 1925, then the notices and demands must be served by one of the following methods:-

1. Delivered by hand to the property owner’s last known place of residence or business (s196(3));

2. Sent by post in a registered letter i.e. by recorded or special delivery (s196(4));

3. By virtue of section 7 of the Interpretation Act documents can be served by ordinary First Class post as long as the following applies.

• The demand is correctly addressed;

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

• The demand is actually posted.

Service by email is, in this case, not good service unless the property owner has previously expressly requested that demands/notices be served by email only.  Such a request should (for your file) be provided in writing clearly asking for service by email only, notwithstanding the provisions in the lease or transfer.  Such a request may be sufficient to override the provisions in the lease/transfer. 

Where the lease or transfer does not refer to s196 LPA 1925 but does specify methods for service of the notices and demands

If the lease/transfer does not refer to s196 LPA 1925 but does stipulate means by which demands and notices should be served, for example by post, fax or leaving it at the property, then you must comply with those provisions.  Service by an alternative method to that or those provided, such as email, will not amount to valid service.   

However, if the property owner expressly requests that they wish for the demands to be served on them by an alternative method to that referred to in the lease/transfer, such as by email, then such a request will make it very difficult for the owner to dispute their liability on the basis that demands had been served by that method requested and not by a method specified in the lease.

Where the lease or transfer remains silent as to methods of serving demands and notices

Where the lease/transfer is absent specific provisions relating to the service of notices and demands, s196 LPA 1925 will apply and so service should be effected either by post or hand delivery, save where the owner has expressly requested service by an alternative method, including email. 

Please note that where the lease or transfer fails to mention s196 LPA 1925, the onus is on the sender of the demand to show that the demand was actually received by the property owner.

Demands available via an online portal

We are aware that many managing agents offer online portals to enable owners to access information online relating to their property, including notices and demands etc.  Whilst this method will provide access to information for the owner, it may not discharge the duty for the landlord/RTM/RMC to serve demands or notices.  Unless the property owner has agreed for demands to be provided to them via an online portal, as distinct from other permitted methods, they may have grounds to argue that demands or notices were not served unless they were also sent to that owner by the relevant method under the lease or alternative request by the leaseholder (see the above).

Conclusion

Given the latest hike in the cost of sending items by First Class post and the modern preference of most people to conduct correspondence etc. by email, as opposed to standard post, there is much merit in seeking to serve demands and documents on owners by email.  However, the law has yet to catch up with these modern ways and so the guidance for now at least remains:-

• Demands and notices must be served in accordance with the provisions set out in the lease/transfer or in accordance with s196 LPA 1925 where the lease/transfer is silent on methods of service. 

• Demands and notices should only be served by email where either the lease/transfer provides for such service or, in the absence of such provision, where the property owner has provided a signed written request for demands to be served by email. 

Best practice would be to serve notices and demands on property owners as directed in the lease/transfer or by hand delivery or first class post to the last nominated address for service provided by the owner.  So long as the above occurs then there is no harm in also sending copies by email where the property owner has provided you with an email address. 

If you do receive a request from a property owner to serve them by email then, firstly, ensure that the property owner has put this request in writing and, secondly, ensure that you keep a record of that request.

Disclaimer

This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above.  The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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