Can you tell me a bit more about seving the notice. I have served by recorded delivery - so it has to be signed for - a Notice of Possession under section 21 4a as i wish to take the property back. Its a periodic tenancy and I have given the required 2 months notice. My question is - what happens if the tenant does not collect the post from the sorting office holding it (1 attempt has been made but they werent in). The date I am working to for the required notice is the 21st April. If they dont actually get the letter until after the 21st, is the date still valid. or am I deemed not to be given them the 2 months notice if they dont actually receive it (despite my sending it in good time) till after that date. The notice has been dated with the date I sent it and the date that they need to quit.
At the moment also they are 2 weeks behind with the rent (always late payers) and I wouldnt be surprised if now they dont pay. Presumably I can use the deposit for unpd rent?

A quick word on serving notice. It is accepted legal custom to serve notice by ordinary post to the tenant's address (the let property) using standard first class mail and giving three days for delivery, which you need to take into account when writing out the notice. Registered mail actually makes things rather more complicated, because anyone might sign for it (not the actual tenant). Also, as you rightly point out, if its held at the sorting office, it hasn't been delivered. My advice is, start again and use the standard posting method, keeping a copy of the notice for your records and the date, time and where posted.

Regarding service of the notice, if the tenant doesn't receive the notice by the deadline date, the notice will not have been duly served. With the method above, it is generally accepted by the courts that if a notice has been posted in the mail to the property address using the standard mail system, it is said to be served three days later - even if there is no proof the tenant has actually got it in his/her hand.

Deductions from the tenant's deposit for rent arrears depends on two matters ... 1) provision must be made clear within the terms of the tenancy agreement; and 2) if the deposit was received within the deposit protection legislation period (i.e. it was received after 6 April 2007), any deduction must be authorised by the tenant and by the relevant scheme, otherwise arbitration or the courts are the only agencies that can make a determination.

Tony Booth

To gloss this a bit:
You may receive conflicting advice because:

Section 196 Law of Property Act 1925: Any notice required or authorised to be served by this Act shall be sufficiently served if it is sent by post in a registered letter … at the last known place of abode or business and if that letter is not returned through the post undelivered and service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

Section 23 Landlord and Tenant Act 1927: Any notice under this Act shall be in writing and may be served on the person by sending it through the post in a registered letter addressed to the last known place of abode in England and Wales.

Section 7 Interpretation Act 1978 Where an Act authorises or requires any document to be served by post, then unless the contrary indication appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post

Case law clarifies this contradiction:
From Blunden v. Frogmore Investments Ltd [2002]

The tenant thus disputed the validity of the notice. He gave evidence that he had been away from home at the time, and, on his return had found a communication from the post office that it held a recorded delivery item. However, by the time the tenant became aware of this the recorded delivery items had been returned to the landlord's solicitor as undelivered. The tenant also stated that he had not seen the notice on the premises because he was forbidden to go near them due to the dangerous nature of the buildings. The judge in the court below dismissed the tenant's claim on the ground that there had been good service of the notices. The tenant appealed.

The Court of Appeal unanimously agreed that the landlord had validly served the notices pursuant to section 23 of the 1927 Act. They held that section 23 of the Landlord and Tenant Act 1927 permits service by recorded delivery to the tenant's last-known place of abode, whether or not it is returned by the Post Office.

Robert Walker LJ, in a passage that, in my view, underscores all of these cases, said: “Notice is not the same as knowledge. But the evident purpose of requiring notice to be given to a particular person is that the contents of the notice should be communicated to, and become known by, that person. Nevertheless, there is no doubt that both statutory and contractual provisions may lead to the position that a valid notice has been given, even though the intended recipient does not know of the notice (and is not at fault in not knowing about it)…. the object of section 23 of the 1927 Act, as incorporated into the 1954 Act is not to protect the person upon whom the right to receive the notice is conferred by other statutory provisions. On the contrary, section 23(1) is intended to assist the person who is obliged to serve the notice, by offering him choices of mode of service which will be deemed to be valid service, even if in the event the intended recipient does not in fact receive it".

The Notice should however be served in accordance with the relevant clauses in the AST Agreement.

Thanks for the replies - began to think no one would! Then it took a few days to even be ably to reply as when i tried it kept taking me back to the home page.
But here is the update.

1 day before the date I could see the letter had not been signed for so decided to play it safe (hopefully) by delivering a copy by hand. I took a witness with me and handed the letter to one of the tenants and explained what it was. So hopefully I have complied with the act in issuing it in time. The original was indeed returned to me as it wasnt picked up by the tenant (no doubt knowing what it was they felt there wasnt any point). I copied the envelope and reposted it again by 1st class post - 1 week after it wass originally sent.

I am now wondering also if I have got the date right. The tenancy started from 22nd April in the original AST and I entered first monthly rent due 1st of June and subsequently 1st of each month as I wanted payments to be easily calculated. The tenant on signing paid the amount from 22nd to end of month plus the next month.
Is that all important date, the date of the agreement or the date on which I asked for the rent to be paid in advance each month? I have used the AST date. It is now a periodic tenancy and the rent has - until now - been paid at irregular datrs - often in 2 instalments to which I agreed but stated only as a concession.

The rent for February has not yet been paid and I have written asking for it to be paid and pointing out that they need a reference which they wont get if they dont pay rent. I strongly suspect that now they wont pay. At what point will the rent become 2 months in arrears? Will it be a full 2 months without payment or is it 2 months in arrears if they havent paid on day 2 of the 2nd month (as its paid in advance) ?

Thanks.

First, a quick thanks to TMS98 for the service of notice information. The content is very useful reference material and supersedes the earlier information I had from a property solicitor.

The dates for Notice are complicated and many get it wrong. In fact, it's the main reason why possession cases fail in court. Although in essence the date formula is a technicality, courts cannot operate without it being followed TO THE LETTER. When the Housing Act states Notice must be for two months, it is defined as two rent period months. In other words, the date specified in the tenancy agreement as the commencement date - which is the same (technically) as the date rent becomes due.

The rent due date specified in the tenancy agreement is NOT altered by any other informal arrangement made between landlord and tenant. So, if the actual rent due date written into the agreement is 6th of March, but the landlord and tenant later make an arrangement for rent to be paid on the 1st of each month - the actual rent due date for the commencement and expiry of any future Notice will remain the 6th of the month.

Thus, if two months notice is required and notice is issued on (for example) 7th March ... using the above reference, two full rental periods means the notice will expire on 5th June.

It seems from what you have said that some confusion may have arisen over the actual rent date specified in your tenancy agreement. I would strongly advise having it checked out with a solicitor - and certainly prior to going to court, if going to court becomes the ultimate resolve. If I understand you correctly, the tenant paid advance rent despite the tenancy agreement not demanding it. This could cause a court judge to deem that either the tenancy start date or the rent due date is appropriate when calculating notice dates - and the case could therefore be thrown out of court on that basis.

Of course, it may not come to that ... but as there is an element of doubt, it's worth checking the situation with a solicitor before accruing court costs.

TONY BOOTH