When serving claim notices under section 13 or 42, or counter-notices under section 21 or 45 of the 1993 Act it is important that practitioners consider methods of service of such notices. Improper service can have devastating effects particularly for landlords, who will likely be stuck with having to accept the tenants proposals contained in their claim notice, if a counter-notice is improperly served and the time limit for serving a counter-notice has passed.
Section 99 of the 1993 Act requires notices to be given “in writing”. There has previously been some debate as to whether a notice sent by email or fax is properly served. A few recent county court cases have, to some extent, made the courts position on this issue a little clearer.
In Stoll Construction Ltd v. Kelly (unreported in the Brentford County Court 2000) the court held that a claim notice could not be served by fax. However in Achieving Perfection Ltd v. Gray (unreported in the Brighton County Court 2015) the court held that a claim notice could be served by email. There is little authority on the position with counter-notices.
However in the more recent case of Cowthorpe Road 1-1A Freehold Limited v. Wahedally (unreported in the Central London County Court) the court decided that service of a counter-notice by fax was not valid. Fax did not satisfy the test of “in writing”. Fax is not treated as a hard copy, original (as opposed to a copy) document which is what the court said is required by the 1993 Act.
Practitioners serving counter-notices should also take close note of the address for service given by the tenant(s) in the claim notice. Rarely are fax numbers or email addresses given for the purposes of service.
The simple lessons to be learned from these cases are :
1. Effect service by a postal method which can be proven such as special or recorded delivery.
2. Do not leave service of a counter-notice to the last day. If this cannot be helped consider using a courier to effect service.
3. If possible, telephone the receiving party to obtain confirmation of receipt and prepare an attendance note evidencing that conversation.
The award winning Leasehold Enfranchisement team at Hart Brown have the experience and specialist knowledge to assist leaseholders who find themselves in such a situation.
Partner and Head of Leasehold Enfranchisement
Hart Brown Solicitors