Will my Section 21 be valid?

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    Will my Section 21 be valid?

    Hi!

    I have a couple of tenancies, call them A and B. Both started with an AST (A is still during the initial 12 month fixed term of AST, B has gone to periodic).

    On both counts I may need to serve Section 21 notices - can I get an opinion as to whether they'll be valid? Both ASTs began after Oct 2015. Details are:

    - I served all prescribed documents (gas safety, EPC, how to rent, deposit protection literature, etc.) on the day of commencement of the tenancy. This is ok right - it doesn't have to be a date prior to the first day the tenancy and AST starts?

    - In both cases, it was sent by e-mail (FYI in both cases, the ASTs signed state that any notices can be served on the tenants at the e-mail addresses used)

    - For A, the tenant replied back (as requested) confirming they received the documents

    - With B they did not reply (despite me asking them to acknowledge receipt in said e-mail). I did however copy in the agent (so he should have a copy of the e-mail), and I know the tenant's e-mail works as I have been corresponding with it otherwise! I can't see why they would not have received it

    Thanks very much!

    #2
    Documents need to be given before the tenancy starts.

    I always think email'[s a bit iffy on it's own because if the T's pc is broken they can't receive it, but it's their responsibility to advise you and give you an alternative form of service/contact. Can you text them or go round to the property to confirm? Perhaps you could write to them to confirm that you've sent the email.

    Comment


      #3
      How are you going to prove someone received an email if they don't acknowledge it? Two copies from post offices with proof of posting IIWY.

      Comment


        #4
        I think you're possibly going to struggle with the Gas Safety Certificate and the Prescribed Information (relating to the tenancy deposit).
        The legislation about the other Prescribed Requirements (How to rent etc) does allow for service by email if the tenant has agreed to that, but there's nothing in the legislation for the Gas Safety Certificate copy or Tenancy Deposit that specifically allows it.

        Courts are meant to consider more modern methods of delivery, but, usually, documents that are meant to be "served" are meant to be physically handed over.
        There are regulations about faxes, but not email service.

        It will be up to the court to decide.
        Personally, I never send important documents by email.
        There's good case law that a document delivered to a shared address wasn't served to the individual it was addressed to (because service to the shared letter box wasn't sufficient, so I'd (personally) expect most email services to fail on the same grounds.)
        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

        Comment


          #5
          Originally posted by JK0 View Post
          Two copies from post offices with proof of posting IIWY.
          If you want to be pedantic that proof of sending an email isn't proof of receipt, then that applies to proof of posting as well.
          I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

          I do not answer questions through private messages which should be posted publicly on the forum.

          Comment


            #6
            There's nothing inherently or legally problematic with sending documents by email. If you care to search, you'll be able to find supporting case law. If the tenancy say that notices in relation to the contract/tenancy can be served by email at the address specified, then proof that you sent it as specified is as good as proof of posting of letters by post that you sent it. In fact, the proof of sending it by email is slightly better in that you can also show what was actually sent by email, whereas proof of posting is just proof that a letter was sent not the content of the letter. Neither is proof of reciept.

            More relevant to this thread is why are you asking? There's nothing you can do now to stop the tenant from raising it as a potential point of defence if you go to court for possession. In fact, you don't even know if they will contest it in court. All you can actually do is gather your evidence as prepartion, and send the notice off and see what happens. IF the tenant in question then dispute it, you can then worry about how to argue in your favour.
            I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

            I do not answer questions through private messages which should be posted publicly on the forum.

            Comment


              #7
              Originally posted by jpkeates View Post
              I think you're possibly going to struggle with the Gas Safety Certificate and the Prescribed Information (relating to the tenancy deposit).
              The legislation about the other Prescribed Requirements (How to rent etc) does allow for service by email if the tenant has agreed to that, but there's nothing in the legislation for the Gas Safety Certificate copy or Tenancy Deposit that specifically allows it.
              It does seem bizarre that you cannot serve documents by e-mail. The tenants signed a contract with a clause saying notices can be served by e-mail at the specified e-mail address. Presumably that clause would be invalid then?

              I've just read about some case law where parties serving legal proceedings had issues because of the specific e-mail address they used (i.e. the wrong person) but the ASTs in this case made sure they agreed what e-mail it was?

              Comment


                #8
                Originally posted by KTC View Post
                There's nothing inherently or legally problematic with sending documents by email. If you care to search, you'll be able to find supporting case law. If the tenancy say that notices in relation to the contract/tenancy can be served by email at the address specified, then proof that you sent it as specified is as good as proof of posting of letters by post that you sent it.
                There's nothing intrinsically wrong with using email.

                However, it can be an issue when something has to be "in the prescribed form or in a form substantially to the same effect".

                And, being picky, if the person being served agrees that they can be served via email, the email address supplied for service has to be "an e-mail address set out on the writing paper of the solicitor acting for the party to be served".
                So a solicitor would need to be involved.

                Things that have to be formally "served" are not the same as other documents.

                Sending an email isn't proof of delivery - some mail servers filter out junk which the user doesn't necessarily see.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                Comment


                  #9
                  Originally posted by jpkeates View Post
                  And, being picky, if the person being served agrees that they can be served via email, the email address supplied for service has to be "an e-mail address set out on the writing paper of the solicitor acting for the party to be served".
                  So a solicitor would need to be involved.
                  Can you reference that JPK? I have been serving documents such as GSC, EPC & H2R by email for a few years now with a clause in the TA, (signed with wet signatures) saying that this will be to email addresses previously notified etc.

                  Comment


                    #10
                    Originally posted by jpkeates View Post
                    And, being picky, if the person being served agrees that they can be served via email, the email address supplied for service has to be "an e-mail address set out on the writing paper of the solicitor acting for the party to be served".
                    So a solicitor would need to be involved.
                    You are confusing documents or notices which may be served in relation to (in this case) a tenancy whether mandated or otherwise by legislations, with documents which may be served in relation to a court claim which come under the CPR. If the tenancy agreement say service by email is okay, then service by email is okay.

                    However, it can be an issue when something has to be "in the prescribed form or in a form substantially to the same effect".
                    I'm only ever thinking of sending it as attachments (as required for example for How to Rent), rather than typing it out in the body of the email, so don't see how that can be an issue.

                    Sending an email isn't proof of delivery - some mail servers filter out junk which the user doesn't necessarily see.
                    Neither is proof of posting proof of delivery.
                    I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

                    I do not answer questions through private messages which should be posted publicly on the forum.

                    Comment


                      #11
                      Originally posted by KTC View Post
                      Neither is proof of posting proof of delivery.
                      It isn't.
                      But the level of proof required is on the balance of probabilities, and there's a huge body of evidence about the reliability of the UK postal service.
                      For a letter posted first class to go missing is extremely unlikely.
                      And the reliability is continually checked and reported on.

                      Email sent via SMTP (ie. most of it) is amended as it moves across the internet, with stuff being added to the header.
                      You can't actually give any support to a claim that an email was sent without having a copy from somewhere at the receiving end (or, theoretically, en route.)
                      A sent copy of an email and a draft and unsent copy are identical.

                      The most reliable way of evidencing an email has been sent is to cc it to another email address (that isn't your own - gmail, hotmail or something like that).


                      When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                      Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                      Comment


                        #12
                        Even that doesn't prove that the person named in the To header was actually included in the SMTP envelope. If you want to go to the next level there are services that will create a digital signed (proper cryptographic signature) and forward to the recipient.

                        Comment


                          #13
                          So I need to serve S21 for the tenancy where I DID get a confirmation of receipt back from the tenants for the gas safety, EPC, etc. served by e-mail.

                          Coming down to a subtle point here, but I served the documents on the same date that the AST started - rather than 'before'. Seems like a petty point to me - but is there likely to be an issue over this should the tenant try and contest...

                          Comment


                            #14
                            The tenancy doesn't start until the tenant has sole possession of the property, so usually most of the paperwork is pre-tenancy.
                            When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                            Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                            Comment


                              #15
                              Originally posted by jpkeates View Post
                              The tenancy doesn't start until the tenant has sole possession of the property, so usually most of the paperwork is pre-tenancy.
                              Thanks. I would hope the tenant wouldn't be bold enough anyway to try and contest the matter based solely on this near-technicality, so thinking about it - in hindsight I won't sweat it. It's something I will be more careful of in future though (and also not to rely on e-mail, but get a signed receipt of documents in person before giving keys!)

                              Comment

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