S21 Notice Given By Email?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

    S21 Notice Given By Email?

    I understand that a S21 has to be given in writing but I was just wondering if an email is an acceptable form of 'in writing'?

    #2
    Depends on the wording of the agreement.
    [I]The opinions I give are simply my opinions and interpretations of what I have learnt, in numerous years as a property professional, I would not rely upon them without consulting with a paid advisor and providing them with all the relevant facts[I]

    Comment


      #3
      I am not sure the wording of the agreement will help since a section 21 notice is a statutory notice.

      Better not to send any sort of notice by email.

      Comment


        #4
        The key thing is, can you provide proof of service?

        Comment


          #5
          The tenant has replied to the email so he has clearly received it.

          I understand the point that it is better not to send any notice by email but this does not answer the question. There must be a legal view on this, surely?

          Comment


            #6
            You would imagine that the position would be clear cut but I came across a non-landlord and tenant case which appears to contradict the common sense rule; and indeed what I would have imagined to be correct.



            High Court approves service of a lawsuit by email

            You've got writ
            By OUT-LAW.COM • Get more from this author

            Emails that initiated legal proceedings were ignored as spam by a shipping firm. It was a costly oversight: the firm lost the case without taking part and an English judge has rejected a late challenge, ruling that service by email is just as valid as post or fax.

            The significance of the case, decided 21st December, is limited: this was a maritime arbitration, not an English court action. That would be subject to different rules, rules that generally do not permit the service of writs by email.

            The case only came before the High Court when Bernuth Lines Ltd sought to challenge the validity of the arbitration ruling against it. The High Court ruled that, in an arbitration, effective service did not depend on the email address to which service was made being one that the serving party had been notified of as an address to be used in the context of the dispute.

            The dispute arose after Bernuth chartered a cargo ship to High Seas Shipping Ltd for a voyage from Miami to Nicaragua. The draught of the chartered ship – i.e. the depth of its keel below the surface – was found to be over the limit for one of the shallower ports on the voyage; so the captain felt compelled to unload the cargo onto another ship. A dispute ensued over payment of compensation.

            High Seas’ lawyers emailed Bernuth, offering to settle the dispute for $34,100. If no settlement was reached, arbitration proceedings would commence, said the email. The email sought Bernuth’s agreement to the appointment of an arbitrator.

            However the email address used by the lawyers – info@bernuth.com – had not been detailed on any prior communication between the parties, although it was listed on the firm’s website and in the Lloyds Maritime Directory.

            Bernuth did not respond to the email – or to any of the others that followed during the arbitration proceedings – despite High Seas’ lawyers logging delivery receipts for all of the messages.

            Finally, on 29th July 2005, the arbitrator issued his final award in favour of High Seas.

            This time the arbitrator sent notice of the award by email and by post. He was contacted shortly afterwards by Bernuth’s lawyers who expressed surprise at the award.

            It transpired that the info@bernuth.com address was used for Bernuth's cargo bookings. The emails about the dispute would have been ignored as probably being unsolicited email, argued Bernuth's lawyers. They wrote to High Seas' lawyers: "Our client is perplexed that the other channel of communication established through your client’s Miami lawyers appears to have been bypassed.”

            Bernuth asked the High Court to invalidate the award on the basis that the legal action had not been properly brought to the firm’s attention and that there had “been a serious irregularity affecting the proceedings which has caused or will cause them substantial injustice.”

            The Arbitration Act of 1996 allows awards to be challenged on such a basis.

            The ruling
            According to Mr Justice Christopher Clarke, the case hinged on whether the arbitration had been properly commenced or not.

            Under the Arbitration Act this depends on notice in writing being given, requiring the defendant to appoint or to agree to the appointment of an arbitrator. Such a request had been expressed in the first email to Bernuth, but questions remained over whether the notice had also been properly served.

            According to the Act, “A notice or other document may be served by any effective means.”

            In the opinion of the Judge, this provision has been made “purposely wide”. He explained:

            “It contemplates that any means of service will suffice provided that it is a recognised means of communication effective to deliver the document to the party to whom it is sent at his address for the purpose of that means of communication (e.g. post, fax or email). There is no reason why, in this context, delivery of a document by email – a method habitually used by businessmen, lawyers and civil servants – should be regarded as essentially different from communication by post, fax or telex.”

            According to Justice Clarke, service emails must be sent to the email address of the intended recipient and, where several email addresses are shown, it must be sent to the correct one. In this case, said the Judge, the email address had been held out as Bernuth’s only address and emails sent to that address had been logged as delivered.

            “The position is, to my mind, no different to the receipt at a company’s office of a letter or telex which, for whatever reason, someone at the company decides to discard," added Justice Clarke. "In both cases service has effectively been made, and the document received will, in the first instance, be dealt with by a clerical officer."

            The fact that the emails did not reach the relevant members of staff was an “internal failing” but did not affect the validity of service.

            Comment
            John MacKenzie, a partner at Pinsent Masons, the law firm behind OUT-LAW.COM, said: "When email first emerged there were concerns about whether it was 'writing' at all. This case demonstrates the almost uniform acceptance of email as a form of communication."

            He said it also shows that if you have an email address, the inbox needs to be carefully checked. This includes generic addresses such as 'admin@' and 'info@', as in this case.

            "Not all court documents can be served by email due to specific court rules, but there can be other important notices that may be missed if the inbox is not checked," added MacKenzie.

            Scottish court actions cannot be served by email. In England, email service is possible but only when there is written consent to this from the other party in advance, according to the Civil Procedure Rules. Accordingly, if a British business receives a court action "out of the blue" by email, it could generally argue that service has not been affected.

            Copyright © 2006, OUT-LAW.com

            Comment


              #7
              Originally posted by MrJohnnyB View Post
              Depends on the wording of the agreement.
              Just checked the agreement and it says: "Any notice by the L to the T shall be sufficiently served if the same complies with the Law of Property Act, 1925, Section 196, as amended by the Recorded Delivery Service Act, 1962. It is sufficiently served if it is delivered in person or left at the tenant's address or sent through the post by recorded or registered delivery provided the notice is not 'returned through the post undelivered'".

              I suspect this is out of date now.

              Hmmm...and just looking more closely I see the agreement is a National Landlords Association one of May 2006

              Comment


                #8
                Very interesting Quarterday but as you say it still does not definitively answer my question.
                Logically, the notice has been delivered as the T responded to it, but who knows if it is 'sufficiently served'?

                Another question that occurs to me is that if I post it by recorded delivery and the T is not at home when the postman tries to deliver it then it will be kept at the delivery office/post office for the T to collect - but what if he doesn't collect it? is it still deemed as served? I can't see that it is. And after a certain number of days has passed then the letter gets returned to sender - so I can't see that sending it recorded delivery can guarantee it's delivery.

                Comment


                  #9
                  Section 196 is permissive and not mandatory. A notice served in accordance with the section is deemed to have been served but other methods of service are not ruled out; if you can prove the notice was received it was served.

                  That does not of course answer the question of whether a section 21 notice is in writing if sent by email. If it is not in writing then the fact that the tenant acknowledged it is irrelevant, just as it would be if the notice had been given orally.

                  I am not sure anyone can answer the question with authority until there is a case on it.

                  Originally posted by ABC123 View Post
                  Another question that occurs to me is that if I post it by recorded delivery and the T is not at home when the postman tries to deliver it then it will be kept at the delivery office/post office for the T to collect - but what if he doesn't collect it? is it still deemed as served? I can't see that it is. And after a certain number of days has passed then the letter gets returned to sender - so I can't see that sending it recorded delivery can guarantee it's delivery.
                  That is no doubt why a senior litigator in the last firm I worked for said he never served notices by recorded delivery unless it was mandatory.

                  Comment


                    #10
                    Originally posted by Lawcruncher View Post
                    That does not of course answer the question of whether a section 21 notice is in writing if sent by email.
                    Surely this issue must have come up since the advent of email (not necessarily in respect of s.21 notices but other things which are required to be 'in writing')? If not, I think there is a strong argument that an email is 'in writing'.

                    Is there a current legal interpretation of 'in writing' which has yet to be challenged? If so, what is it?

                    Comment


                      #11
                      Originally posted by ABC123 View Post
                      The tenant has replied to the email so he has clearly received it.
                      But did he reply before the last date on which the notice could be served (ie 2 months before the expiry date) and did the reply include the original email, or did it just refer to it? If the former, then I would presume it to be acceptable to most DJs as served in time.

                      Comment


                        #12
                        Yes, he replied to it the same day I sent it and it included the original mail.
                        Could it be regarded as not served if he had not included the original email even if he referred to it?

                        Thanks to everyone's input, by the way - very much appreciated!

                        Comment


                          #13
                          Originally posted by ABC123 View Post
                          Yes, he replied to it the same day I sent it and it included the original mail.
                          Could it be regarded as not served if he had not included the original email even if he referred to it?
                          S.21 requires the LL to give T written notice. It does not require the tenant to receive or acknowledge the notice. Regardless of T's response, the issue remains as to whether LL's s.21 notice is validly given or served by email, and whether email is 'in writing' - i.e. whether it complies with the requirements of s.21.

                          Comment


                            #14
                            I am begining to have a change of heart. I presume the AST gives an address at which legal documents can be served on landlord and tenant - and presumably that is the rental address in the case of the tenant. In which case the landlord can not prove service at that address.

                            Comment


                              #15
                              I think the 'jury' is still out on this, with no definitive case to date. Even since the growth in emails, contracts could not be concluded by electronic means as they require an personal signed signature not a facsimile sig. Copies/drafts may be sent electronically for ref etc. The legal debate at moment is whether to allow 'verified electronic sigs' as original sigs. The Law always lags behind technology. The Interpretation Act still suggests Registered Mail is 'proof of service' even though Royal Mail moved the goalposts years ago. Even the 'presumed service time' of First Class post is likely to become laughable as Royal Mail service deteriorates.
                              I recently did a field job for ONS and all our time sheets and expenses HAD to be submitted electronically on their intra-web using a n employee PIN.
                              I would argue if a digital s21 is properly completed, printed then signed by LL 'in his own hand' and this print-out is then scanned and sent to T as an email attachment, then this should be sufficient, as LL should retain the hard copy. I cannot find how to include my orig sig in the body of an email or text, other than as a digitised pic.
                              The again I am not the one who will decide, M'Lud.

                              Comment

                              Latest Activity

                              Collapse

                              • Reply to Letting Agent Withholding Key (Lease signed + rent paid)
                                by HobbitShire
                                Sorry but I must reitterate that she DID provide all documents which were initially requested before both parties signed the lease. This new, rigid requirement for a utility bill only came a day before the agreed move-in date.

                                This is not a case of a prospective tenant having no paper trail....
                                20-01-2022, 01:28 AM
                              • Letting Agent Withholding Key (Lease signed + rent paid)
                                by HobbitShire
                                My partner has recently signed a lease through a well known property agent in London.

                                The lease was also signed by the landlord. References from current + previous employer, landlord, etc, and proof of address were requested before signing, and provided.

                                Upon signing the lease...
                                20-01-2022, 00:57 AM
                              • Reply to Letting Agent Withholding Key (Lease signed + rent paid)
                                by HobbitShire
                                Firstly, she already provided the previous lease, along with a document from the municipality of Amsterdam stating that she was registered as living there. I paid the bills as we were living together, and she has closed her Dutch bank account (as is required when you are no longer a resident). I'm sure...
                                20-01-2022, 01:11 AM
                              • Reply to Letting Agent Withholding Key (Lease signed + rent paid)
                                by Jon66
                                No bank statements with the old address on? These are available freely from your online account, or previous utility bills, council tax bills etc. I find it difficult to accept that they are unable to provide something. I would have concerns if you were my prospective tenant. You need to provide the...
                                20-01-2022, 01:02 AM
                              • Reply to Property damaged. Advice please
                                by minorbark
                                When you put it like that I'm more inclined to edge towards the S21 route regardless. As much as part of me feels some compassion for the guy and doesn't want to lump more stress on top of someone who appears to be struggling already, as has been said before, none of us are acting as a charity.
                                ...
                                19-01-2022, 22:51 PM
                              • Property damaged. Advice please
                                by minorbark
                                Apologies if something similar has already been covered elsewhere. I did try to search but couldn't find anything that matched my situation particularly closely. A huge thanks in advance to any of you who do take the time to read and advise.

                                TLDR version: Police have forced entry into my...
                                18-01-2022, 21:55 PM
                              • Reply to Property damaged. Advice please
                                by minorbark
                                Thank you.

                                My initial contact with the police was just a phone call to the local station. As I almost half expected they wouldn't give up much info, I didn't particularly push back when they said as much and I left it at that. A formal complaint might fill in a few blanks in the story but...
                                19-01-2022, 22:37 PM
                              • Reply to Property damaged. Advice please
                                by Hudson01
                                A back door way into finding out what did happen (or more info than you have now), is to ask for a callback from the local PCSO who covers the beat area where the tenant lives (go online and start a live chat), he or she will know far more about your tenant that a faceless comms operator at HQ or anyone...
                                19-01-2022, 22:17 PM
                              • Reply to Property damaged. Advice please
                                by DoricPixie
                                Just because someone knocks on your door, even if it crescendos to them banging loudly on your door, it doesn’t mean you have to answer it or have to go and investigate.

                                If the tenant suffers from mental health issues and the police were sent round because someone thought the tenant’s...
                                19-01-2022, 21:47 PM
                              • Reply to Property damaged. Advice please
                                by WebLand
                                From painful personal experience of this issue... You should formally contact the police, ask them why they broke the door down and ask for compensation. Their lawyer will then write to you with some information which may be useful for you to know (but not giving very much detail). I expect they'll...
                                19-01-2022, 21:31 PM
                              Working...
                              X