Real estate building blocks - How to give and get property notices (and for all the right reasons)

Real estate building blocks - How to give and get property notices (and for all the right reasons)

Real Estate Building Blocks - Authorised Guarantee Agreement

Property agreements (like leases or sale agreements) often contain mechanisms which require one party to serve notice on the other party in order to trigger some event, for example an option to terminate a lease or to require a purchaser to complete a sale contract.

Failure to serve the notice correctly can be fatal and prevent a party being able to trigger the intended event. As the consequences of not serving a notice correctly can be significant, this is an area where disputes are common and there is a significant body of case law from the courts. 

Who should give the notice?

A notice can usually be served by an agent or legal representative on a party’s behalf, but care should be taken to ensure there are no prescriptive requirements in the agreement which specify who needs to serve the notice and how this should be done.

Where there are joint parties to a lease or an agreement it is usually the case that one party can serve a notice on behalf of both of them, but it is always preferable for all parties to the agreement to be named on the notice to avoid disputes.

Who should receive the notice? 

The recipient of a notice might be named in the agreement but where the "owner" or the "landlord" under an agreement needs to be served, the identity of the receiving party might have changed over time. In those circumstances it is essential to investigate and correctly identify the right party. In the case of some statutory notices the receiving party might be someone else entirely who is not a party to the agreement, for example in the context of a lease renewal where the "competent landlord" needs to be served instead of the direct landlord. 

Senders should also consider the "registration gap" before serving a notice. This is where a property has been sold or lease assigned but HM Land Registry has not yet updated the title with details of the new owners. In these circumstances, legal title remains with the previous owner and it may be necessary to serve notice on them for the notice to be valid.

Where should I send my notice?

The starting point is to look carefully at the relevant agreement to see if it contains a "notices clause" which sets out how and where the other party is to be served.

Senders should not rely solely on the address stated for the party in the agreement and should take care to check whether they have been notified of a change of address by the other party. The court has found that where an agreement provided for a party which had moved to supply an updated address for service of notices, and such an address had been provided, that precluded the serving party relying on the original address given in the agreement. 

When serving notice on a company it is sensible to check Companies House in case the company’s registered office has changed. If the recipient’s interest is registered, there may also be an address for service on the recipient’s registered title at HM Land Registry which may be sufficient for service of the notice, depending on the notice provisions in the agreement.

How should the noticed be delivered?

The agreement will usually direct how notice is to be served. In many cases agreements make reference to Section 196 of the Law of Property Act 1925 (Section 196) or it is otherwise incorporated into the agreement by statute.

Where Section 196 applies a notice is sufficiently served where it is left at the recipient’s last-known place of abode or business in the United Kingdom, or where it is sent by registered post or recorded delivery (which means a registered post service or a postal service providing for delivery to be recorded).

When serving by post under Section 196 a notice is deemed served at the time when it would in the ordinary course of post be delivered, provided that it is not returned undelivered.

Some agreements might expressly provide that parties can serve notices by email. This can cause difficulties if an email inbox generates a bounce back which advises that the email has not been received. Sending by email should therefore usually be accompanied by another method of service.

It is advisable to send a notice by more than one method to have an insurance policy against the notice not being received. This is particularly the case if the notice needs to be delivered by a particular deadline. Delivery by hand is preferable to achieve certainty. 

When is a notice delivered?

The agreement may contain "deeming provisions" which specify when a notice is deemed to have been received where a particular mode of service has been adopted (even if it was actually received later in practice). Alternatively, in the absence of deeming provisions, it will be a question of fact for the sending party to demonstrate the date a notice is actually delivered. It is therefore advisable for the sender to retain any evidence of actual delivery (for example "signed for" confirmation).

What if the recipient has died or disappeared?

Where the sender of a notice knows that the recipient has died then the notice may need to be served on the recipient’s executors, or in some cases on the public trustee. The sender may need to undertake additional investigations if it is on notice that the recipient will not receive the notice.

What if the sender changes their mind - can a notice be withdrawn?

This will depend on the terms of the agreement and the mechanism by which the notice was served. In certain circumstances the parties may be able to agree that a notice is withdrawn, but in some cases the notice will trigger an event which cannot then be "reversed" by agreement. The party sending a notice should assume that it will be binding, and be prepared for the consequences of that before sending it, in case the receiving party will not agree to treat the notice as withdrawn or it is not possible to reverse the effects in law of the notice having been served. 

What if the notice contains a mistake?

A minor mistake will not necessarily invalidate a notice if a reasonable recipient would not be confused by the error and would understand what meaning the notice was intended to convey. However, if there are prescribed or statutory requirements for the notice, then those must be complied with in order for it to be valid. If errors which might invalidate the notice are identified, the safest course of action is often to re-serve the notice, at least where time permits.

Serving notices under property agreements correctly can be complex and meeting the requirements for a valid notice is not always straightforward. Parties should take early advice to ensure that any requirements for serving notices are adhered to and to avoid potentially adverse consequences of failing to serve notice correctly.  

This information is necessarily brief and it is not intended to be a full statement of the law. It is essential that professional advice is sought before any decision is taken. Serving notices can be contentious and we therefore recommend obtaining legal advice or instructing a solicitor before serving a legal notice. 

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