Landlord and tenant – Service charge – Demand – Service – Lease containing clause providing for service of documents on lessee – That clause providing that document well and sufficiently given if sent by registered post or recorded delivery or attached to door of flat – Clause further providing that document sent by post deemed to be received 48 hours after posting – Appellant sending service charge demands by ordinary second-class post – Whether demands valid – Whether lease requiring service by registered post or recorded delivery or merely permitting such service – Appeal allowed
The respondent held a lease of a flat, dating from 1987, on terms that provided for the payment of a service charge to the appellant landlord. Clause 6(b) of the lease dealt with the service of demands, notices and other documents, providing that such documents “shall be well and sufficiently given if sent by the Lessor or the Lessor’s Agent through the post by registered post or recorded delivery letter addressed to the Lessee at the flat or attached to the door or doors thereto… and any demand notice or other document sent by post shall be deemed to have been served forty-eight hours after such posting”.
The appellant made an application to the leasehold valuation tribunal (LVT) in respect of unpaid service charges claimed to be due from the respondent, seeking a determination that the charges were payable. The relevant service charge demands had been sent to the respondent by ordinary second-class post.
The LVT held that clause 6(b) of the lease imposed a mandatory requirement that demands sent by post should be sent by registered or recorded delivery post and that, consequently, the service charge demands had not been properly served on the respondent, such that no service charges were payable for the service charge years ending September 2007 to September 2010.
The appellant appealed. It contended that clause 6(b), properly construed, imposed no requirement for service by registered post or recorded delivery but merely constituted a deeming provision, under which documents that were so sent were deemed to have been served whether or not they had actually been received.
Held: The appeal was allowed.
The provisions of clause 6(b), properly construed, were permissive, rather than mandatory, and did not impose a requirement that the service of documents by post was to be effected exclusively by registered post or recorded delivery. The wording of clause 6(b) was not exhaustive of the methods of service and was not intended to prescribe the only methods of service to be utilised. It did not displace other methods of actual service of demands for payment.
Read in context, the words “if sent” were referable to the word “post”, as thereafter defined to mean registered post or recorded delivery. The clause therefore provided that a document, if sent by registered post or recorded delivery, would be “well and sufficiently given”. An alternative method was then set out by which a demand for payment would be well and sufficiently given if attached to the door of the flat. The deeming provision at the end of the clause, although infelicitously worded in the context of the earlier parts of the clause, was an attempt to incorporate by analogy some of the wording of the deeming provision in section 7 of the Interpretation Act 1978, under which service of documents sent by post was deemed to be effected at the time when the letter would be delivered in the ordinary course of post. Accordingly, the word post in the deeming provision referred to ordinary post, as contrasted with the “registered post or recorded delivery” referred to in the earlier parts of the clause.
The effect was that, if ordinary post were utilised as the method of service, then the demand for payment notice or other document would be deemed to have been served 48 hours after such posting. Where No such deeming provision was necessary where the methods of registered post or recorded delivery, now known as Special Delivery, were used, since the receipt of documents served in that way was subject to tracking and was signed for by the recipient, or returned. There was therefore no need for service in such circumstances to be “deemed” to have taken place within 48 hours of posting. The deeming provisions were directly referable to the service of documents by ordinary post and bore no relevance to service by Special Delivery.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister
