Every Tenant’s worst nightmare is to miss a break date in a Lease of unwanted space! With rental demand currently weak, Landlords are likely to take any technical point they can to defeat a Tenant’s break notice and the rental void it would trigger.
Often the decision to serve break notices is left until close to the deadline and with the current disruptions caused by the post strike the risks of slip ups are increased. Tenants need to plan ahead to avoid last minute panics. Also because of the law relating to service, Landlords may not be able to assume that non receipt of a formal notice by the deadline means that the lease continues.
When formal notices have to be served, there is often a significant event that will happen as a result. It can be vital that the formalities of the clause specifying how notices are to be served are observed because as one case famously said if the clause had said that the notice had to be on blue paper it would have been no good on pink paper!
Three different statutes affect the service of notices in the property world and all of them will be overridden by any specific provisions written into the document under which the notice is to be served. The technicalities of this would not make interesting blog reading although they exercise real estate lawyers’ minds when notices have to be served.
Taking the example of the break notice the well advised tenant will be asking:
- What does the lease say about how a notice is to be served? Is the specified method for service mandatory or is it just a permission to serve as specified? Old leases often specified that documents could or should be served by registered post which no longer exists. What is the appropriate method today?
- Am I likely to have a dispute about whether notice has been validly served and if so how can I go about proving I served properly?
- What is the up-to-date address for the landlord? If you now have an overseas landlord how can notice be served on it validly and how long will it take?
- Does the notice have to be received to be effective?
- Will the notice be deemed to have been received even if it does not come to the attention of a specific individual by the deadline and if so how soon is it deemed to be received?
- What deadline am I working to?
For Landlords the alarming message is that non receipt by the deadline is not necessarily the end of the story. Notices may still have been served validly even if never received, depending on how the notice is or has to be served. There is no easy solution to this for Landlords.
The current postal strikes add further complications. The News is all about the backlog of mail and fears that some of it may never be delivered. We have recent experience of a break notice sent by recorded delivery taking over a week to arrive.
Here are a few practical tips which might help when serving break or other kinds of notice:
- Check carefully what the document says about service and if the required method is mandatory, stick to it by the letter and serve it in plenty of time – so much time that you could do it again before the deadline if something goes wrong!
- If you suspect that strict compliance with the service requirements will result in the notice not reaching the recipient by the deadline (whether because of the post strike or for other reasons) then consider ways of minimising the risk of future disputes. One approach will be to make contact by more practical means to make sure the right person knows what is happening within the deadline e.g. serve by post if that is the required method but also deliver a copy/duplicate by hand.
- Make sure you can prove service of your notice.
- Ask for an acknowledgement of receipt and chase for it if not given promptly.
Extra service might entail a bit of expense, time and effort but the costs are likely to be far cheaper than paying rent and other outgoings for unwanted space until the end of the term or until the next break date!
We know, of course, that this is a time where legal spend is being watched by many but not instructing your solicitor to serve notice could be a false economy.