Court of Appeal Section 21 decision rules in favour of landlords

The Court of Appeal has given guidance on the service of documents by post, including the Prescribed Documents required before a valid s21 notice can be served. Sarah Barratt and Harry Wade from our real estate dispute resolution team break down the highly anticipated judgment in Khan v D’Aubigny (2025), which lays down clear guidelines for what a landlord must do to correctly serve a tenant the documents required before a valid s21 notice can be served.

A brief background                                                               

The landlords served a s21 notice on the tenant, and the tenant accepted that they had received it. However, she denied having received the required Prescribed Documents that should be sent prior to a s21 notice being served, these being:

• The Gas Safety Certificate.
• The Energy Performance Certificate.
• The How to Rent Booklet.

The landlords had sent the Prescribed Documents to the tenant via recorded delivery post and argued that this was sufficient to show that the documents had been appropriately given and deemed ‘served’.

The argument

There were three key points in dispute:

1. Whether S.7 of the Interpretation Act 1978 applied. This provision says that where an Act authorises or requires a document to be served by post, then service is deemed effective so long as a document is:
   1. Properly addressed.
   2. Pre-paid.
   3. Posted.
2. Whether the Tenancy Agreement’s provision around ‘notices’ (lowercase) was applicable to the service of the Prescribed Documents.
3. Whether the tenant had adequately evidenced that they had not received the Prescribed Documents.

The Court of Appeal judgment 

After considerable deliberation, the Court of Appeal ultimately found in favour of the landlords on points 2 and 3, dismissing the appeal and upholding the lower court’s decision.

Importantly, while S.7 of the Interpretation Act did not apply in this situation (because there was no Act of Parliament which required or authorised these documents to be sent by post), the Court of Appeal were satisfied that the tenant had not adequately evidenced that they had not received the Prescribed Documents and that Prescribed Documents had been served in accordance with the deemed service provisions set out in the Tenancy Agreement – this being:

"Any notice sent to the Tenant under or in connection with this agreement shall be deemed to have been properly served if…sent by first class post to the Property."

Take home points

Landlords must continue to exercise caution in serving Section 21 Notices and the Prescribed Documents. Not only does a landlord need to ensure that the Prescribed Documents have been provided to the tenant before the service of a Section 21 notice, but a landlord must also ensure that they are provided effectively.

It is good practice for landlords to:

• Ensure that the wording of deemed service in the Tenancy Agreement is precise and clear, leaving as little ambiguity as possible.
• Obtain as much evidence as possible that the Prescribed Documents have been provided to the tenant (e.g., hand delivery to the tenant with a certificate of service and/or a receipt or sending via First Class Post and Recorded Delivery).

If you require any further information about the above, please do not hesitate to contact Sarah Barratt on 0191 211 7923 or email [email protected].

A copy of the judgement can be found here for anyone interested in the finer details of the case.