Khan v D’Aubigny [2025]

 Khan v D’Aubigny [2025]

Introduction

The case Khan v D’Aubigny[1] was heard in the Court of Appeal (Civil Division), following an appeal from the County Court at Wandsworth presided over by Her Honour Judge Baucher. The appellants, Kameel Khan and Julia Randell-Khan (the landlords), initiated proceedings against the respondent, Elena D’Aubigny (the tenant), to recover possession of a property under an assured shorthold tenancy (AST). The tenant appealed the possession order, raising issues of statutory interpretation and contractual obligations. While the tenant’s arguments on statutory interpretation were partially accepted, ultimately, the Court of Appeal dismissed the appeal, holding that while statutory deeming provisions did not apply, the landlords were entitled to possession based on a clause in the tenancy agreement.

Facts of the case

The Khans owned and let a flat in London to Mrs. D’Aubigny under an AST beginning in February 2018 for a fixed term ending in January 2020. After the fixed term expired, a statutory periodic tenancy arose. To bring the tenancy to an end, the landlords served a section 21 notice under the Housing Act 1988 (HA 1988).

However, to serve a valid section 21 notice, landlords must first comply with statutory requirements to provide the tenant with specific documents including: an Energy Performance Certificate (EPC); a Gas Safety Record (GSR); and the Government’s “How to Rent” guide.

The Khans claimed these documents were served by first-class and recorded delivery, but Mrs. D’Aubigny denied receipt. The key dispute was whether the documents were validly served and whether the landlords were entitled to rely on statutory or contractual deeming provisions.

In the first instance the County Court at Wandsworth, Deputy District Judge Davis granted possession order in favour of the landlords. The tenant appealed this decision to Her Honour Judge Baucher, who upheld it. On further appeal, the case was heard by the Court of Appeal (Civil Division) before Lord Justice Nugee, Lord Justice Newey, and Mr. Justice Cobb.

The Court of Appeal was asked to consider the following legal issues:

1. Interpretation of section 7 of the Interpretation Act 1978: Does section 7 apply in cases where the relevant statute does not explicitly authorise postal service yet documents are served by post?
2. Contractual deeming provisions: Are the statutory documents “notices” under clause 13.2 of the tenancy agreement, allowing for deemed service?
3. Common law service: If neither statutory nor contractual deeming provisions apply, can the landlords prove service at common law?

Arguments for the tenant

The tenant argued that section 7 of the Interpretation Act 1978 was inapplicable in this case, as the relevant housing legislation under the Housing Act 1988 merely required statutory documents to be “given” or “provided” without specifying the method of service. The tenant maintained that Section 7 only applies where statute expressly authorises postal service. Since the relevant regulations did not explicitly mention service by post, the tenant contended that it was improper for the landlords to rely on the statutory deeming provisions to validate service.

In relation to the tenancy agreement, the tenant asserted that the documents in question, including the Energy Performance Certificate (EPC), Gas Safety Record (GSR), and the “How to Rent” guide, were not “notices” under clause 13.2. These documents, while statutory requirements, were described in the regulations as “certificates,” “records,” or “information” rather than notices. The tenant argued that the use of the term “notices” in the tenancy agreement should be confined to formal communications explicitly affecting the legal rights and obligations of the parties, such as termination notices, and therefore the documents fell outside the contractual deeming provisions.

Finally, the tenant contended that the landlords failed to prove actual delivery of the documents under common law. Although the landlords provided evidence of posting, the tenant denied receiving the documents, and this denial was not challenged in court through cross-examination or rebuttal evidence. Without further proof of receipt or delivery to the tenant’s attention, the tenant argued that the landlords did not satisfy the burden of establishing proper service.

Arguments for the landlords

The landlords argued that the term “give” in the relevant housing regulations permitted the use of postal service for delivering statutory documents. They contended that section 7 of the Interpretation Act 1978 applied to the regulations, as it governs situations where documents are authorised to be served by post. According to the landlords, the act of posting the required documents fulfilled the statutory requirements, shifting the burden to the tenant to prove that the documents were not received.

The landlords further maintained that the documents constituted “notices” under clause 13.2 of the tenancy agreement, which allowed for deemed service if notices were sent by first-class post to the property. They asserted that the purpose of the documents—providing the tenant with vital statutory information such as safety standards, energy efficiency, and renter responsibilities—placed them within the scope of “notices” as contemplated by the tenancy agreement. Consequently, the landlords argued that the documents were validly served under the contractual provisions, regardless of whether they were actually received by the tenant.

Lastly, the landlords relied on the common law presumption that properly addressed and posted letters are deemed received by the addressee. They provided evidence of posting the documents via first-class post and recorded delivery, including postal receipts, which established a rebuttable presumption of service. The tenant’s bare denial of receipt, unaccompanied by further evidence, was insufficient to displace this presumption. The landlords concluded that they had met the necessary burden of proof to demonstrate service through statutory, contractual, and common law principles.

The Court’s analysis

The Court first considered section 7 of the Interpretation Act 1978, which states:

“7. References to service by post.

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) then, unless the contrary intention 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.”[2]

The Court concluding that section 7 applies only when a statute explicitly authorises postal service unless contrary intention appears[40]. Given that the relevant regulations required documents to be “given” or “provided” without specifying the method, the Court concluded that section 7 was inapplicable. This meant that the landlords could not rely on the statutory deeming provision to argue that the documents were effectively served via post.

Turning to the tenancy agreement, the Court examined Clause 13.2, which governs the service of notices between the parties. It interpreted the term “notice” broadly to include the cover letter enclosing the tenancy documents, explaining that these documents conveyed critical information about safety standards, energy performance, and the rights and responsibilities of the tenant [59 – 61]. The Court determined that the documents were integral to the landlord-tenant relationship and, as such, fell within the scope of Clause 13.2. Under Clause 13.3.2, documents sent by first-class post were deemed served two working days after posting, irrespective of whether they were actually received by the tenant.

Lastly, the Court addressed the common law position which creates a rebuttable presumption that properly addressed and posted letters are received by the addressee [80]. While the tenant denied receiving the documents, the Court found her evidence insufficient to rebut this presumption. The landlords had provided evidence of proper posting procedures, including postal receipts, which supported their claim that the documents were served. On this basis, the Court concluded that service was validly effected under common law.

The significance of the case

This case has far-reaching implications for landlords and tenants, particularly concerning the service of statutory documents. The Court of Appeal’s decision has clarified that section 7 of the Interpretation Act 1978 applies only when statutes explicitly authorise postal service. This reinforces the need for landlords to ensure compliance with precise statutory or contractual provisions when relying on postal service to deliver the relevant tenancy documents. The decision also highlights the challenges of interpreting statutory language and underscores the importance of clear legislative frameworks to eliminate ambiguities regarding methods of service.

Additionally, the decision emphasises the importance of well-drafted tenancy agreements in mitigating disputes. By incorporating explicit deeming provisions for the service of documents, landlords can protect their interests and any subsequent possession proceedings. These provisions can provide clarity on the scope of notices and ensure that essential documents, such as Energy Performance Certificates (EPCs) and Gas Safety Records (GSRs), are considered validly served upon posting.

For tenants, the ruling underscores the necessity of maintaining accurate records and promptly raising disputes over the receipt of statutory documents. The decision highlights the inherent difficulty in disproving common law presumptions of service, placing greater responsibility on tenants to substantiate their claims. Moreover, the case draws attention to broader issues of compliance and enforcement in landlord-tenant relationships, where imbalances in knowledge and power can exacerbate disputes.

Interlink with Renters’ Rights Bill

The Renters’ Rights Bill, currently under consideration in Parliament, aims to significantly reform the private rental sector by abolishing section 21 “no-fault” eviction.[3] Under the proposed Bill, landlords will be required to demonstrate specific, legally defined grounds for possession, such as non-payment of rent, significant breaches of tenancy agreements, or the landlord’s intention to sell or move into the property, are met before being able to seek possession of their properties. The Bill as currently drafted does not refer to the additional requirements associated with section 21 notices, including those related to the service of statutory documents such as the Energy Performance Certificate (EPC) and Gas Safety Record (GSR). By focusing on clear, defined grounds for eviction, the Bill seeks to reduce the technical challenges and legal ambiguities that often arise under the current framework.

Conclusion

In conclusion, the decision in Khan v D’Aubigny provides crucial clarification on the interplay between statutory, contractual, and common law provisions for serving documents in landlord-tenant relationships. The Court of Appeal’s ruling reaffirms the importance of adhering to precise legislative requirements while underscoring the practical value of well-drafted tenancy agreements. By interpreting the term “notices” broadly to encompass statutory documents, the judgment emphasises the role of contractual deeming provisions in addressing procedural uncertainties. Overall, the ruling serves as a reminder of the challenges in balancing compliance and fairness within the current legal framework and underscores the potential significance of reforms such as the Renters’ Rights Bill in reshaping the private rented sector in England.

[1] [2025] EWCA Civ 11

[2] Section 7, Interpretation Act 1978

[3] Renters’ Rights Bill, UK Parliament <https://bills.parliament.uk/bills/3764> accessed 21 January 2025