As reported on Nearly Legal, the recent Court of Appeal case of D’Aubigny v Khan & Anor (2025), clarified the Court’s position with respect to service by post of a gas safety certificate, EPC and How to Rent Guide and whether this was ‘deemed served’. 

This is relevant for accelerated possession claims as service of these documents can affect whether a s.21 notice is valid. 

Background 

In this case, the tenant, Mrs D’Aubigny, questioned the validity of a section 21 notice served on her on the basis that she had not received the gas safe certificate, EPC and How to Rent Guide previously sent by the Landlord, by post and thereby making the s.21 notice invalid. 

Section 7 of Interpretation Act 1978 allows service by post to mean ‘deemed service’. i.e. the act of posting it is what makes it served, regardless of whether it was actually received. When relying on this provision and serving documentation by post, the date of ‘deemed service’ is determined to be the second business after the documents were sent. Evidence that the individual actually received the documents is not required under these provisions. 

This provision states that it applies where “an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) unless the contrary intention appears."

The specific issue before the Court in this case was whether section 7 of the Interpretation Act 1978 applies to service of the gas certificate, EPC and How to Rent Guide. This included whether service of those documents by post specifically was authorised and/or required in accordance with the Housing Act 1988 and relevant regulations. The outcome of that determination would in turn determine whether the section 21 notice served on Mrs D’Aubigny was valid. 

The Court of Appeal decision 

The question before the Court of Appeal was whether the Housing Act 1988 and related regulations authorised or required service by post (meaning the IA 1978 deemed service provisions would apply).  

The provisions did not specify how the gas certificate and EPC were to be provided to a tenant). It was specified that the How to Rent Guide must be provided in hard copy but there is other reference on how service is to be effected. 

The Court of Appeal determined that, as the relevant provisions did not detail how the documents were to be ‘given’ to the tenant, this permits service by post but does not amount to authorising service by post. The court further determined that Section 7 of the Interpretation Act 1978 only applies where the statutory provision expressly refers to service "by post". As such, the deemed service provisions of Section 7 of Interpretation Act 1978 did not apply to service of these documents. 

So, what effect does this have on service of the gas certificate, EPC and How to Rent Guide? Whilst these can be served by post, the tenant must have actually received them for them to be effectively served. This would have rendered the Section 21 Notice in this case invalid, had it not been for the Tenancy Agreement. 

Tenancy Agreement – how can this help? 

In this specific case, within the Tenancy Agreement, there was a clause permitting service of any notice in connection with the Agreement to be deemed served if sent by first class post.  

So, for the Section 21 Notice to be valid, the gas safety certificate, EPC and How to Rent Guide needed to be: 

1. In connection with the Tenancy Agreement 
2. A Notice 

The first was somewhat of a simple point, with the Court of Appeal Judge concluding that the papers were clearly in connection with the Agreement as Mrs D’Aubigny was only receiving these due to her entering into the Agreement. 

The second and perhaps more complex requirement under the Tenancy Agreement was the need for the documents to be a ‘notice’. It was determined that a notice was simply a document that notifies the recipient of something. For the purposes of a landlord and tenant relationship, any notification in connection with that relationship satisfies this. 

The gas safety certificates, EPC and How to Rent Guide were considered to be notices in connection with the Tenancy Agreement and therefore could be deemed served by post. 

This is an important case for Landlords seeking to rely on the accelerated possession route (for however long that remains available!). Not only do you need to check the correct documents have been provided to your tenancy before you can serve a valid s.21 notice, but you also now need to check how they were provided. 

Ideally, they will have been personally handed to the tenant at the tenancy sign-up (or annually in the case of subsequent gas certificates) and you will have a record of this. However, if you are seeking to rely on provision to the tenant by post – does your tenancy agreement allow for deemed service of notices by post? If not, do you know if the tenant has received the documents? E.g. perhaps they made contact after receipt if the documents were within the s.21 Notice (which is common practice)? 

Without evidence of receipt, you run the risk of a fairly easy defence from a tenant, who can seek to claim they did not actually receive the documents required before a s.21 notice can be validly served, as within this case the Court confirmed its position that a tenant need not provide positive evidence that they did not receive documentation, they merely have to deny receipt. 

The Judgement of this case can be found here. We are grateful to Nearly Legal for bringing this to our attention.