Last Updated: February 7, 2024
The number of documents that landlords must serve to ensure compliance with their legal obligations is continually increasing, especially regarding possession recovery under Section 21 of the Housing Act 1988.
Due to this, individuals and businesses are more reliant than ever on modern technology to achieve compliance and satisfy their obligations; however, these methods are not without risk despite their ease of use.
This blog considers the risks associated with using an online portal for serving prescribed documents on tenants who occupy premises under an Assured Shorthold Tenancy.
In a recent matter on which we have been instructed, the How to Rent Guide (“HTRG”), as well as other requisite documents which needed to be provided to the tenant, were uploaded to an online portal which the tenant could log in and access/view/download a copy of the document(s).
The Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 (“the Regulations”) set out the requirement for landlords to provide prescribed information and documents (including the HTRG).
The Regulations provide:
(1) A landlord under an assured shorthold tenancy of a dwelling-house in England, or a person acting on behalf of such a landlord, must give the tenant under that tenancy the information mentioned in paragraph (2).
(2) The information is the version of the document entitled “How to rent: the checklist for renting in England”, as published by the Department for Communities and Local Government, that has effect for the time being.
(3) The information may be provided to the tenant—
(a) in hard copy; or
(b)where the tenant has notified the landlord, or a person acting on behalf of the landlord, of an e-mail address at which the tenant is content to accept service of notices and other documents given under or in connection with the tenancy, by e-mail.
The underlining is our own emphasis to show that the regulations require the tenant to be given a copy of the HTRG, either in hard copy or by email.
The Regulations also require the landlord to ‘provide’ the Energy Performance Certificate and the Gas Safety Certificate to the Tenant. In the Regulations, there is no suggestion that the EPC or GSC may be provided by email; although if there is an adequate service provision in the tenancy agreement they may be served by email.
At common law, to evidence service of a document, it must be proved that the document has come to the attention of the recipient. Certain statutory provisions can apply to the service of notices and once it is shown that the notice has been left at, affixed on, or sent by post to the relevant address, there is an irrebuttable presumption of delivery so that evidence the intended recipient has never seen it is irrelevant.
This rule of ‘Deemed Service’ exists to provide certainty to the sender of documents, that having taken a recognised step to bring a document to the attention of the recipient, the document will be treated as having been received by them.
There are recognised steps for service of documents contained in the CPR and these include first-class post, or email, as well as some other less frequently used methods.
Landlords and tenants can rely on the provisions of the CPR by incorporating these service provisions into their tenancy, or alternatively, they may incorporate their bespoke service clauses as they consider appropriate.
Where a tenancy contains a service clause, this clause will take precedence over other rules/methods for service. The tenancy agreement in our recent matter contained the following service clause;
5.3. The provisions for the service of notices are that if the landlord or the agent delivers by hand any Notices or documents which are necessary under the agreement or any Act of Parliament to the Premises by 4.30 pm or the last known address of the tenant if different; and reasonable evidence is kept of the delivery; the documents or notices will be deemed delivered on the next working day; or if any documents or notices are sent by registered, or recorded delivery post the documents will be deemed delivered upon proof of delivery being obtained; or if the documents or Notices are sent by ordinary first class post addressed to the tenant at the Premises or the last known address of the tenant if different; and reasonable evidence is kept of the delivery; the documents or Notices will be deemed delivered two working days later.
There is no mention in the service clause within the tenancy agreement, that service by email (or the online portal) is acceptable. This is not uncommon and the service clause above is found in many template-assured shorthold tenancies.
In the present case, when signing up for and using the online portal, the tenant agreed to a number of terms and conditions. The relevant clauses were as follows;
The site carries out several administrative functions resulting in important and legal documents being generated. By using this site, you consent to receiving these important documents either via email or via the site, using your supplied user identification code and password. In addition, you acknowledge that your consent and agreement may be obtained electronically, for example by ticking a box to state that you agree with something, and wish to proceed. If you disagree with this you should contact us to make alternative arrangements.
By agreeing to use the online portal you are agreeing to receive all documents/notices electronically to the email address used to register/access the online portal.
These clauses indicate that the tenant agrees to receive documents in the manner stated, but there are a few notable risks with this.
(1) These clauses are contained in documents outside the tenancy agreement and are not incorporated into it as a method of service. It is the tenancy agreement which the Court will look to when determining whether a document has been served. If the clause does not provide for the method used, the party serving will need to prove at common law that the document came to the attention of the intended recipient.
(2) At common law, being required to show that the document came to the tenant’s attention may prove difficult. Unless there is some way of knowing when/if the tenant has viewed the relevant document in the portal, there may well be difficulties in satisfying a Court that the document was brought to the attention. i.e. the documents might be uploaded to the portal but the tenant may not log in and view them.
(3) Service by email requires an email to be sent – in the instance whereby documents are uploaded to a portal, they are not sent to the email address provided (only a link to log in and view them). We have seen a marked shift in the judiciary over recent years and Judges are keen to ensure strict compliance with the requirements placed on landlords. This is particularly so where landlords wish to avail themselves of their right to recover possession under the so-called ‘no fault’ possession procedure contained in section 21 of the Housing Act 1988. The result is that by using modern and innovative methods to comply with requirements, landlords may find themselves unable to recover possession of their property using Section 21, or in some circumstances may be liable to pay compensation to their tenants.
There may be more than one solution, but if technology is being used, we consider the best approach is to have the documents sent by email. If this is not feasible using the portal systems available, the agreement should have a bespoke service clause which states documents uploaded to the portal are deemed served within a certain time after having been uploaded (with an email sent to the Tenant informing them that they are there).
We recommend that you seek advice on suggested wording for such a clause, but there may still remain a risk that the Court deems the step of uploading into a portal insufficient when determining if the document has been provided to the tenant, as required by the Regulations.
If you have any questions pertaining to the issues raised in this blog or would like to seek advice relating to your tenancy, please get in touch with us at Contact@legalforlettings.co.uk.