Readers for
whom service of notices is routine might reasonably have expected its legal
wrinkles to have been ironed out by now. However, an unusual sequence of events
can raise new issues. A recent case, concerning a dispute over a former
matrimonial home, hinged on the application of statutory provisions that apply
to most leases. In particular, the court had to consider the effect of a change
of heart by the server.
service
Under general
law, a notice is served only where it is proved to have been brought to the
attention of the recipient. In practice, documents such as leases usually
include express provisions on service. Furthermore, in certain circumstances,
various statutory provisions apply.
Section 196
of the Law of Property Act 1925 applies to notices under that Act, such as
section 146 notices and notices to sever joint tenancies. It also applies,
unless a contrary intention is shown, to notices requiring service under the
terms of a lease, such as rent review notices. It does not apply to notices
required by other statutes. Section 196(3) provides that notices are
sufficiently served if left at the last-known place of abode or business of the
addressee or if affixed or left on the demised or mortgaged premises. By virtue
of section 196(4) sufficient service can also be achieved if a notice is sent
by registered or recorded delivery addressed to the recipient by name, provided
that the letter is not returned undelivered.
Section 23
of the Landlord and Tenant Act 1927 applies to notices served under various
statutes, notably those required by Part II of the Landlord and Tenant Act
1954. It is not mandatory but merely provides that service may be
effected by personal service, either by leaving the notice at the last-known
place of abode or business of the recipient, or by sending it to him by
registered or recorded delivery to that address.
In effect,
both provisions lay down presumptions of service: where a notice is proved to
have been left at the appropriate premises, either in person or by a courier,
the addressee cannot deny that service has taken place, even if he does not
actually receive it. Where it can be proved that the notice has been sent
by registered or recorded delivery, it is equally clear that service is deemed
to have taken place, with the result that it is not necessary to prove that the
letter was actually delivered.
intention
Kinch v Bullard [1998] 47 EG 140 concerned what had been the
matrimonial home of a couple who had both died. They had been joint tenants,
which would normally mean that on the death of the husband the wife would have
become the sole owner under the rule of survivorship and that, on her
subsequent death, the property would pass under her will. However, prior to the
husband’s death, the marriage had been in difficulties. The wife, who had been
diagnosed as terminally ill, started divorce proceedings, and later instructed
her solicitors to serve a notice severing her joint tenancy. This was sent to
her husband at what was still the matrimonial home, by ordinary post on Friday,
August 4 1995. During the weekend, the husband suffered a serious heart attack
and was admitted to hospital. The notice was delivered to the house on Monday,
August 7 and was picked up and destroyed by the wife, who was presumed to have
realised that her husband was now likely to predecease her and that she would
now benefit from the rule of survivorship. The husband died within a few days
and the wife died some six months later.
The
proceedings were between their respective executors. The question was whether
the notice of severance had been served. If so, the husband’s share in the
property would have passed to his executors; if not, the property belonged
solely to the wife’s executors.
The
‘husband’s’ case rested on section 196(3) of the 1925 Act. The notice had been
shown to have been ‘left at’ his address and had, therefore, been served; it
mattered not that he had never seen it. For the ‘wife’ it was argued, first,
that subsections (3) and (4) were a composite provision, so that there is no
deemed service where the ordinary post is used. This was firmly rejected by
Neuberger J; physical delivery at the recipient’s last-known place of abode or
business can be effected by any means, including the ordinary postal service.
The second
argument was that subsection (3), as distinct from (4), does not create an
irrebuttable presumption so that, where it can be proved that the notice was
not received by the addressee, there is no service. Again, he judge disagreed;
he was satisfied that existing authorities, although not strictly binding,
consistently indicated that once physical delivery has been effected at the
appropriate address, service has taken place.
The third
argument was that at the time of service, ie when the notice was delivered, the
wife no longer desired to sever the joint tenancy. Although this contention was
based on the statutory provision relating to notices of severance, the judge
regarded it as a matter of principle. Hence, he considered whether a change of
mind on the part of the server between the posting and delivery of a notice
could deprive that notice of effect. His lordship was quite satisfied that an
uncommunicated change of mind could have no effect; this would expose the
recipient to total uncertainty, and it could never have been intended that the
validity of a notice could hinge on the state of mind of the sender.
The final
main contention was whether the unusual facts of the present case, ie the
physical destruction of the notice by the server before it was received
by the recipient, meant that the notice had not truly been left at the
property. After careful consideration of what he regarded as a powerful
argument, the judge concluded that section 196(3) should nevertheless be
allowed to operate without qualification, so that the notice of severance had,
in this case, been served. However, he did take the view that had it been the wife’s
executors who were seeking to uphold the notice, they would have failed. Her
physical destruction of the notice after it had been delivered and before it
had been seen by her husband would have deprived it of legal effect.
