The recent Court of Appeal decision in Khan v. D’Aubigny [2025] EWCA Civ 112 has given some clarification on the critical point of proper service of notices.
The Background
In Khan v. D’Aubigny, Mr. Khan, the landlord, sought possession of his rental property, relying on a Section 8 notice for rent arrears. The tenancy agreement specified that notices should be served at the tenant’s “last known address” or by leaving them at the property.
Mr. Khan believed that the tenant had vacated the property and, acting on this belief, served the notice by email and posted it to an alternative address he believed was being used by the tenant.
The tenant, Mr. D’Aubigny, argued that he had not been properly served with the notice as required by the tenancy agreement and the relevant statutory provisions. He claimed the notice was invalid, and as such, the possession proceedings were fatally flawed.
The Court of Appeal’s Decision
The Court of Appeal ruled decisively in favour of the tenant, finding that:
- The method of service must comply strictly with the tenancy agreement and the statutory provisions.
- Email service was not agreed upon as a valid method in the tenancy agreement.
- Posting to an alternative address not specified in the tenancy agreement did not satisfy the contractual requirements.
- presumptions of service do not override clear contractual terms.
The court emphasised that landlords cannot make assumptions about a tenant’s address for service. If the tenancy agreement specifies service in a specific way, landlords must comply to the letter.
A Failed Attempt to Rescue the Situation
The landlord attempted to salvage the position by inviting the court to order possession by dispensing with service of a correct notice, arguing that it was impractical to serve the tenant at the property since he believed the tenant was no longer living there.
However, the Court of Appeal firmly rejected this argument. The court underlined that:
- Dispensing with service is an exceptional remedy and is not there to correct failures where the landlord simply neglected to follow the agreed and prescribed method of service.
- The landlord’s belief about the tenant’s whereabouts, however genuine, could not excuse non-compliance with the express terms of the tenancy agreement.
- Courts will not come to the landlord’s rescue where service errors are avoidable and stem from failing to follow contractual procedures.
This part of the judgment reinforces a crucial point: landlords cannot rely on judicial discretion to “fix” service mistakes. We will do a follow up blog on how courts deal with applications to dispense with service.
Why This Case Matters
For landlords and letting agents, Khan v. D’Aubigny is a stark reminder of the importance of precision when serving notices. A procedural misstep can derail possession proceedings, leading to costly delays, additional legal fees, and frustration.
Here are the key lessons:
- Check the Tenancy Agreement Carefully
Does the agreement specify a method and address for service of notices? Follow it exactly — no shortcuts.
- Assumptions Are Risky
Even if you have reason to believe the tenant has vacated, serve the notice at the address specified in the agreement unless you have clear contractual authority to do otherwise.
- Email is Not a Default Option
Unless the tenancy agreement expressly permits service by email, it is not a valid method of service.
- Use Multiple Methods Where Possible
Even if only one method is contractually required, consider belt-and-braces service (e.g., post and email/hand delivery) — but make sure at least one method meets the contractual and statutory requirements.
To avoid the pitfalls seen in *Khan v. D’Aubigny*, consider the following actions:
- Review your tenancy agreements: Ensure they include clear, modernised clauses for service of notices, including digital options if desired.
- Keep detailed records: Maintain clear records of when and how notices are served, with proof of postage or delivery receipts.
- Take legal advice early: Before serving any notice, particularly in sensitive or high-stakes situations like possession claims, seek advice to ensure compliance.
