Tenant sends termination notice - landlord not home

blon

Hello,
my AST agreement includes a break clause according to which either party can terminate the contract at any time by giving no less than 3 months prior notice to the other party by first class post or handing over in person.

Aiming to terminate on 31 July, I send the letter by First Class Signed For von 29 April. It arrived 30 April at its destination, however the landlord was not at home and he can either arrange redelivery or pick up the letter from the post office.

Am I in trouble since he has not actually received it 3 months in advance due to his absence (if he only picks it up next week)? He may have gone on vacation for the bank holiday break. Is it my responsability if he is not at home to receive the letter? Or is all that matters the date of the first delivery attempt?

I could have sent it as non-registered first class mail, but thought the delivery confirmation and signature has added legal value.

Thanks
blon

DaftyDuck

I believe it is physical delivery to the address.... so it hasn't actually arrived there, merely a note saying he could pick it up elsewhere.... hence the usual advice not to use recorded delivery for such items....

blon

where can one read this stuff up? in most other countries it doesn't count if it's not registered mail.

Nick_C

I think you've done exactly the right thing. See http://www.dwf.co.uk/news-events/legal-updates/2012/04/sit-up-and-take-notice-serving-notices-effectively/

"the following rules apply to notices:

They must be writing

They may be served by personal service or by being left at the last known place or abode or posted by registered post (which includes recorded delivery)

Where notice is to a landlord, the service may be to the landlord or any agent of the landlord duly authorised"

Pixie5740

It's the date that notice is served that is important. As you sent your notice using a signed for service and your landlord wasn't there to sign for it your notice has not been served. Whether your landlord now lets you invoke the break close is down to his discretion.

If you had sent the notice using 1st class post and got proof of postage from the Post Office then your notice would have been deemed served 2 working days later.

blon

Thanks, so there are two opposing views. To be honest, I do not think my LL would make a problem out of it and not recognize the termination, but I like to do things the legally correct way, and I was convinced this the proper way to deal with it. It's so messed up because it would seem more logical to put more weight on a signature rather than the day it arrived at the LL's property. E.g. in France and Germany any notice by unrecorded mail has zero legal value.

Would it help to additionally send it via email or fax? Can I throw it into the LL's physical postbox? (but would not have receipt by the post then)

Can I also serve the notice by hand to the agent of the landlord that has been managing the letting? It's not explicitly stated in the agreement that this is possible but I have read it elsewhere.

Nick_C

Pixie5740 wrote: »

It's the date that notice is served that is important. As you sent your notice using a signed for service and your landlord wasn't there to sign for it your notice has not been served.

There are plenty of opinions to the contrary. http://www.practicalconveyancing.co.uk/content/view/7770/0/ for example;

"It seems then that the courts are minded to take a very hard line on service by recorded delivery, and recent case law shows that they are likely to hold that notices are served even where there is clear proof that they have not been received. Since service in the ordinary post requires proof of receipt, then the safest and quickest approach for landlords must always be the use of the recorded delivery service."

http://www.mondaq.com/x/23951/landlord+tenant+leases/Documents+Sent+by+Recorded+Delivery+are+Deemed+Served+on+the+Day+of+Posting

"Recent case law suggests that documents sent by recorded delivery post are likely to be deemed served even if it can be shown that they are unlikely to have been received by the addressee.

Pursuant to the Recorded Delivery Act 1962, a document which may be sent by registered post can be served by recorded delivery. Therefore, notices served under section 23 of the Landlord and Tenant Act 1927 or section 196 of the Law of Property Act 1925 may be served by recorded delivery.

Notices sent by recorded delivery are deemed served on the day of posting, not on the day they would normally be delivered, irrespective of whether they are returned as uncollected to the sender by the Post Office."

franklee

As you are invoking the break clause you have to do what the break clause says so "by first class post or handing over in person". Send again it first class from two different post offices and keep proof of posting. You send the notice to the address provided in the tenancy agreement for service of notices, look to check what it says.

You could email and ask your landlord if he accepts the registered post version but if he delays replying and then says no you've lost yet more time.

pmlindyloo

This might be helpful:

Deemed service rules
It is not always realised that a notice is sometimes treated as if it was served on a different day from the day that you delivered or posted it. These are the deemed rules of service.

Personal service - If the document is served personally before 4.30p.m. on a business day, on that day; or in any other case, on the next business day after that day.
First class post - The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.
Delivering the document to the property (eg putting it through the letter box, attaching it to the door, etc) after 4.30pm - the next business day
Fax - if it is transmitted on a business day before 4.30pm it is deemed served on the same day, otherwise on the next business day
Other electronic method - If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent.
Note also that

Deliveries after 4.30 pm are treated as being served on the next business day

'Business day' means any day except Saturday, Sunday or a bank holiday (and bank holidays include Christmas Day and Good Friday).

I agree that you need to check your tenancy agreement and see if it says anything about the serving of notices.

pmlindyloo

It might also be useful to tell us when your tenancy agreement started - if you renewed and exactly what the break clause says.

Break clauses are notoriously difficult to get right especially regarding the actual notice period and what dates you should use.

G_M

The Break Clause seem unambiguous:

"no less than 3 months prior notice to the other party by first class post or handing over in person."

OP has failed to do this - he sent by "First Class Signed For". Had he sent it as required, it would have been delivered /served, which is probably exactly why the LL specified it in the contract.

The various posts above stating that recorded delivery/signed for etc is a valid service mechanism are referring to court or legal letters.

In this case it is the contract that specifies the service mechanism (as franklee says: the Break Clause is dictated by the contract, not leglislation).