The Courts have recently considered a case concerning the service of service charge demands. Although the Upper Tribunal eventually found in favour of the Landlord the case serves as a useful reminder to check the small print and the service of notice provisions under leasehold documentation. To get it wrong can be costly for either landlords or tenants.
A lease of a flat contained a notice provision that provided:
“Any demand for payment notice or other documents required or authorised to be given to the Lessee 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 Any demand notice or other document required or authorised to be given by the Lessee shall be well and sufficiently given if left or sent through the post by registered or recorded delivery letter addressed to the Lessor at the last known address or registered office of the Lessor and any demand notice or other document sent by post shall be deemed to have been served forty-eight hours after such posting.”
The landlord sent service charge demands by ordinary second-class post. The tenant claimed that it was a mandatory requirement of the notice provision that if the demands were posted, then it must be by registered or recorded delivery post. The Leasehold Valuation Tribunal (LVT) agreed with this interpretation and found that the service charge demands were not validly served. As the demands were invalid, no service charge was payable in respect of four service charge years.
The Upper Tribunal (Lands Chamber) over-ruled the decision of the LVT. The Upper Tribunal held that the clause was not mandatory and did not require documents served by post only to be served by registered post or recorded delivery. The Upper Tribunal concluded the clause did not prevent service by other means.
The Upper Tribunal concluded that if documents were sent by registered post or recorded delivery then they would be “well and sufficiently given”. If all demands had to be given by registered post or recorded delivery, the words “well and sufficiently given if sent” would be unnecessary.
The Upper Tribunal regarded the deeming provision in the final sentence as only relevant where documents were sent by ordinary post. In that sentence, “post” meant ordinary post and did not encompass registered post or recorded delivery (now known as special delivery) where documents are tracked.