In this article Nicole Hilton considers the recent Court of Appeal case Khan v D’Aubigny [2025] EWCA Civ 11. The question before the Court was whether Section 7 of the Interpretation Act 1978 (the ‘1978 Act’) applied to the requirements under the Housing Act 1988 and corresponding Regulations for the provision of an Energy Performance Certificate (‘EPC’), Gas Safety Certificate (‘GSC’), and How to Rent Guide.
Possession proceedings were brought by the landlords against the tenant of an assured shorthold tenancy following the service of a Section 21 notice on 17 March 2020.
The tenant argued that the Section 21 notice was invalid because the landlords had failed to give her an EPC, GSC, and How to Rent Guide.
Sections 21A and 21B of the Housing Act 1988 establish that a Section 21 notice may not be given where a landlord is in breach of a prescribed requirement and has not provided the prescribed information. Regulation 2 of Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (the ‘2015 Regulations’) provides that the prescribed requirements as set out in Section 21A are contained in:
(a) Regulation 6(5) of the Energy Performance of Buildings (England and Wales) Regulations 2012, which requires that a valid EPC has been given to the tenant; and
(b) Regulation 36(6) or (7) of the Gas Safety (Installation and Use) Regulations 1998, which requires that a copy of a GSC is given to the tenant.
Regulation 3 of the 2015 Regulations requires a landlord to give a tenant the effective version of the How to Rent Guide.
The tenancy agreement in this case provided that, “Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if … sent by first class post to the Property”.
Accordingly, the landlords’ arguments were threefold:
- The service of the documents by post had been deemed to be effected by Section 7 of 1978 Act;
- They sent the required documents to the tenant by first class post in accordance with the above clause of the tenancy;
- If Section 7 of the 1978 Act did not apply, the common law presumption that a posted letter was accordingly received by the person to whom it was addressed would apply.
The tenant argued that Section 7 of the 1978 Act did not apply to the statutory provisions, the above clause of the tenancy did not apply to documents that were not notices, and the common law presumption was rebutted in the circumstances.
Focusing on the first argument, Section 7 of the 1978 Act governs circumstances where an Act authorises or requires a document to be served by post (whether the expression “serve” or the expression “give or “send” or any other expression is used). The Section provides that, unless the contrary intention appears, service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document. Further, unless the contrary is proved, service is deemed to have been effected at the time at which the letter would be delivered in the ordinary course of post.
On this ground of appeal, the issue before the Court was whether Section 7 applied to statutory provisions that did not expressly authorise or require a document to be served by post or whether it is sufficient for a statutory provision to use the expressions “serve”, “give” or “send” to engage Section 7?
The landlords argued that as the statutory provisions in the 1988 Act and accompanying Regulations required the giving of the documents, then those words were sufficient to permit the service of documents by post in accordance with Section 7 of the 1978 Act.
The Court of Appeal held that in order for Section 7 of the 1978 Act to apply, a statutory provision has to expressly provide that a document is required or authorised to be served by post. It reasoned that the purpose of Section 7 setting out the alternative wordings of ‘give’ or ‘send’ or any other expression is to add clarity in statutory provisions where the word ‘serve’ is not used. The Court, turning to the intention of Parliament, preferred the submissions of the Appellant that if it was intended that Section 7 is to govern statutory provisions in which there is no reference to post, it would have expressly set out that principle. Accordingly, the Court found that Section 7 did not apply to the statutory provisions in this case.
However, the tenant’s appeal was dismissed on the ground that the letter containing the documents constituted a notice in accordance with the above term of tenancy agreement and was deemed properly served. The Court held that a notice could include a document that conveyed information. Without seeking to give a determinative definition, the Court identified in general terms that a notice is something that notifies the recipient of something, and, in more specific terms, a formal written notification of something, for a formal purpose, such as in connection with a landlord and tenant relationship.
This case is likely to be welcomed in an area where clarity on these issues may assist parties in assessing the litigation risk of the Section 21 procedure. Lord Salmon in Sun Alliance v Hayman [1975] 1 All ER 248 reasoned that the natural meaning of the giving of a notice is causing a notice to be received unless a statutory or contractual provision, or the context, provides otherwise. Thus, Khan v D’Aubigny is an important reminder that clear clauses within tenancy agreements setting out what is to constitute deemed service can be powerful devices. However, it may be prudent to obtain Counsel’s advice prior to issuing a claim where issues as to the prescribed requirements may arise, as uncertainty in the regime could increase litigation risk.
Nicole has a broad practice across commercial and chancery matters and has dealt with the intricacies of the landlord and tenant regime from straightforward possession claims to fast-track litigation. Find out more about Nicole here.
This article is provided for general information purposes only. It is not legal advice and reliance should not be placed on it. Specific advice should be obtained in relation to any case or matter.