RTB told landlords posting date = service date. The High Court says it doesn't. Accommodation providers set up to fail?

[Sarenco]

I took it from your OP!

Step 4 of the RTB guidance.

 

[stormy]

Because the RTA says it's to be given to the RTB on the date of service.

So if I upload today, I have not given it on the date of service.

No, it says “you must send the notice to your tenant and the RTB at the same time”

But in the post you responded to stating I was incorrect, I was referring to the Residential Tenancies Act.

 

[polecon]

Surely, regarding email/hand delivery on the one hand and post on the other, if a landlord doesn't sent it to both RTB and tenant on the same day *by the same method* it will be served on each on different days irrespective of being sent on the same day?

 

[stormy]

Surely, regarding email/hand delivery on the one hand and post on the other, if a landlord doesn't sent it to both RTB and tenant on the same day *by the same method* it will be served on each on different days irrespective of being sent on the same day?

Yes, I would think is the nub of the issue. This is what the judge was getting at. So interested to get to the bottom of the counter argument.

 

[Sarenco]

@stormy

The Act says the notice must be served on the tenant and the RTB on the same date.

If you send the notice to tenant and the RTB by post on the same day, I think we can all agree that the notice has been served on both on the same date.

You can also serve the notice on the RTB by uploading it to their website on the same date that you issue the notice to the tenant by post.

Either method works fine.

I think the confusion arises because you are conflating the method of transmission with the date that the notice is deemed to have been served on the relevant party.

Again, the notice in question was not deemed invalid by the tribunal or the Court because of the confusion around the date of uploading/posting/service.

 

[stormy]

You can also serve the notice on the RTB by uploading it to their website on the same date that you issue the notice to the tenant by post.

Either method works fine.

I think the confusion arises because you are conflating the method of transmission with the date that the notice is deemed to have been served on the relevant party.

Ok, but I'm asking in what basis you can say this? The judge has clearly stated there's an issue. Is he incorrect?

 

[Sarenco]

Well, the Court noted the contradiction in the tribunal’s findings on when the notice was uploaded to the RTB’s site, when it was posted to the tenant and when it was actually deemed to have been served on the tenant.

But the Court didn’t invalidate the notice on those grounds and didn’t make any comment on the RTB’s guidance.

You have extrapolated from the judgment that there is a problem with the RTB’s guidance and that notices would be invalidated if the RTB’s guidance was followed.

I don’t think you are correct on either point for the reasons already stated.

 

[polecon]

@Sarenco

If the Act says:

"F190[(1A) Where a notice of termination is served by a landlord, the landlord shall serve a copy of the notice on the Board on the same day on which the notice is served on the tenant, and where the copy is not so served the notice shall be invalid."

...and a landlord sends a notice to the tenant by posting it on 20th March and also emails it to the RTB on that day is it not the case that he has served it on the tenant on the 21st March but served it on the RTB on 20th March?

Given the words in the Act, why is it not clear that, as per the Judge, we should assume the notice was therefore invalid?

You have extrapolated from the judgment that there is a problem with the RTB’s guidance and that notices would be invalidated if the RTB’s guidance was followed.

 

[Sarenco]

No, if a notice is posted to the tenant on 20 March it will be deemed to have been served on the tenant on the date of receipt in ordinary course, ie the next working day.

Same with the service of notice on the RTB by post or by uploading it to their site.

At this stage, I think we are just going around in circles….

 

[polecon]

Same with the service of notice on the RTB by post or by uploading it to their site.

If we are going around in circles we won't be the only ones.

Are you saying that not only is a posted notice deemed to be served the following working day, but also that an emailed notice is deemed to be received the following working day?

If that's the case, then it may be a surprise to people who, for example hand deliver a notice to a tenant and email a notice to the RTB the same day. Presumably then, the notice to the tenant is served a day earlier than the notice emailed to the RTB.

 

[galway]

If that's the case, then it may be a surprise to people who, for example hand deliver a notice to a tenant and email a notice to the RTB the same day. Presumably then, the notice to the tenant is served a day earlier than the notice emailed to the RTB.

Is it not normal to state how notice was served on the tenant and email the RTB on the same date if at a later date for want of a better word you finish up in front of the RTB it is clear they were notified correctly,

 

[BlackandBlue]

if a notice is posted to the tenant on 20 March it will be deemed to have been served on the tenant on the date of receipt in ordinary course

and

ie the next working day.

Thanks for the explanation.
I understand where you are coming from and the logic behind it.

You have a good grasp of legalities.

Unfortunately too many ordinary people may not have that grasp and therefore confusion arises

 

[polecon]

Digging, suggests that, as is intuitively the case, a notice emailed to the RTB is deemed to be served on the day it is sent - though others should confirm this.

That logically means that if a landlord posts a notice to a tenant on the same day he emails that notice to the RTB the notices will have been served that day to the RTB but only the following working day to the tenant - making the notice invalid according to the wording of the Residential Tenancies Act.

If there is some other, more sophisticated, interpretation known only to practicing lawyers, maybe someone could link to it or set it out.

 

[LarryScott]

Again, the notice in this case was not invalidated due to the confusion over the date of posting/service and this would almost certainly fall within the scope of the “slip rule”.

No attempt was made by the RTB in this case to say that. They yielded the point without arguing it.

No, it says “you must send the notice to your tenant and the RTB at the same time”.

That is NOT what the law says. The High Court didn't care what the RTB advised.

The laws says the following

New Rent
"and a copy of that notice is served on the Board on the same day on which the notice is served on the tenant"

Notice of Termination
"the landlord shall serve a copy of the notice on the Board on the same day on which the notice is served on the tenant, and where the copy is not so served the notice shall be invalid."

The key date is the date it is served.

Reasonableness of the law is not what decides thing. The law is unreasonable, but it is the law.

 

[Sarenco]

If you are really concerned about this, why not send the notice to the tenant and the RTB by the same method (eg certified post) on the same day?

I don’t think it actually matters but I doubt I will convince you otherwise.

 

[Greenbook]

That logically means that if a landlord posts a notice to a tenant on the same day he emails that notice to the RTB the notices will have been served that day to the RTB but only the following working day to the tenant - making the notice invalid according to the wording of the Residential Tenancies Act.

That sounds correct. I bet lots of people did this in the past especially as you had to post to the tenant (emails weren't allowed until the new Act). Are all these NoTs invalid or open to challenge. Even if the landlord posted both, if they arrive in the post on different days, they are invalid

Of course, all this comes from the silly rule, that the RTB and the tenant must both be served on exactly the same day. Why is this, service on the RTB within 7 days for example would be absolutely fine. This is just another rule to trap landlords and now it seems the RTB itself is caught by it

 

[stormy]

If you are really concerned about this, why not send the notice to the tenant and the RTB by the same method (eg certified post) on the same day?

I don’t think it actually matters but I doubt I will convince you otherwise.

It would be very helpful if you could offer something to support your opinion (legislation or otherwise). I think it would also be instructive to answer Polecons question to help tease out where you are coming from.

If you are really concerned about this, why not send the notice to the tenant and the RTB by the same method (eg certified post) on the same day?

The reason for this is clear from what's stated in the Judges Opinion. It says:

"In truth,a document is to be treated as having been served either on the date upon which it would be delivered in the “ordinary course of post”, or, alternatively on the date of actual receipt, if the evidence establishes that this is a different date than the deemed date."

So even if posted to both at the same time, as per the Interpretation Act, the deemed served time could be different for both posted documents.

 

[Bronte]

What happens if you personally serve the notice on Thursday and post it to the RTB Thursday.

I’ve another, actually scenario, I post the NofT from abroad where I live, it’s impossible the tenant would receive it Friday, post has gone to hell, so it could be a week or two!

If you post a NofT on a Friday of a bank holiday weekend or during a postal strike you’d also have problems with the same day of service.

 

[Sarenco]

@stormy

No, if both were posted at the same time both notices would be deemed delivered in the ordinary course of post at the same time.

It is possible that the date of actual receipt would be different but, again, I don’t think anything turns on it.

 

[stormy]

It is possible that the date of actual receipt would be different but, again, I don’t think anything turns on it

Ok, again it would be great if you could support this with something.

What significance then does this statement from the judge carry:
"...alternatively on the date of actual receipt, if the evidence establishes that this is a different date than the deemed date"