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

[polecon]

How do you prove that you personally served the notices on the tenant?

That must be possible surely. Hand it over and video it. Maybe also have a witness.

How do you know the email address is correct (unless specifically provided for in a tenancy agreement) or that the tenant has a device for receiving emails?

The illustration I gave involved emailing the RTB, not the tenant. There is certainty over the RTB email address.

The UK case posted above (to the extent that it’s relevant at all) actually supports my case that the Courts do not place an onerous burden of proof on landlords to prove receipt/service of notices.

That case was quoted to assist people understanding deemed service of posted notices. The point you seem not to engage with is that the judge in the current case - an Irish one - explicitly stated a contradiction to the assumption of deemed service the next working day after posting. He literally said that if the tenant does not receive the notice on the next working day then the notice was served on the later date (the date it was actually received).

 

[Bronte]

Your tenants were under no obligation to sign a confirmation that they had received the notices. What if they refused and simply threw the envelope in the bin?

Cross that bridge when it happens. We have good relations with most of the tenants. They all signed. It’s not necessary for them to sign, just an extra step we decided upon.

 

[Bronte]

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.

Agreed, BUT in section 8 the judge wrote it would be invalid if not done according to the law as outlined in the acts. Section 39A. Then the judge went on to say in section 10 he wasn’t relying on that problem anyway because there were worse problems with the case.

BTW like Alan Shatter mentioned we see in this case about 4 pieces of legislation to figure out the law, made even worse now as that court decision doesn’t take into account what the new Law that was passed recently!

 

[polecon]

Can someone please explain why it is so important that they are served on the same day, what difference does a day or 2 make, especially since tenants have so much eviction notice these days? I understand ppl can abuse this, should common sense not come into play, if it is reasonable then it is reasonable?

This may help you understand why.

The Always Red Light: Chechnya from inside

November 23, 2022 thread

kamilkazani.substack.com

 

[Sarenco]

@polecon

Are you really going to spend the time physically tracking down a tenant with a witness?

I appreciate that there is certainty over the RTB’s email address but that might not be the case for the tenant. I know that I have changed my email address multiple times over the years.

Actually, if you read the judgment carefully that’s not what he says. He noted the contradiction in the tribunal’s report regarding the date of posting of the notices (20/21 March). He also noted the tenant stated that he received the notice on 23 March (although I’ve no idea whether any proof was advanced in this regard).

In any event, it’s moot because the Court did NOT invalidate the notice on these grounds.

 

[polecon]

@Sarenco

I don't know why you characterize it as "physically tracking down a tenant" - I mean you should know where they live. And I did also suggest use of video anyway.

Actually, if you read the judgment carefully that’s not what he says.

This is what the judge actually said:

"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."

It would appear evidence establishing the date of actual receipt is a different date than the deemed date was given by the tenant and accepted. Presumably it also will be in other cases in the future, in which a tenant claims a notice is invalid because it was served on the RTB on a different date to the date it was served on him (the date he actually received it).

 

[Sarenco]

I didn’t see any reference to evidence being produced establishing the date of actual receipt in this case.

Maybe you’re right and tenants will start making this claim (although I think it will be difficult to prove).

Seems an obvious case for the application of the “slip rule” by the RTB.

Again, the notice was not invalidated on these grounds in this case and I very much doubt that notices would be invalidated in similar circumstances in future cases.

 

[Bronte]

I didn’t see any reference to evidence being produced establishing the date of actual receipt in this case.

The judge said he accepted in this case that service was on the 23rd as that’s when the tenant said he received it and nobody else proved otherwise.

No doubt the likes of Threshold will be advising tenants on how to challenge notices based on dates of service after this.

 

[Greenbook]

No doubt the likes of Threshold will be advising tenants on how to challenge notices based on dates of service after this.

Threshold must be celebrating.

All the recent NoTs due to the new rules would have been posted on the same day to the tenant and the RTB. All completely open to challenge now. The tenant can say it didn't arrive in the post until a week later - who is to prove otherwise.

Another example of the complete morass that is the PRS thanks to all the years of meddling.

 

[Bronte]

Seems an obvious case for the application of the “slip rule” by the RTB.

It’s the opposite, if your service date on the tenant is different to service to the RTB your notice is invalid. How can the slip rule fix that?

 

[Sarenco]

@ Bronte

No, he said that was the unchallenged evidence before the tribunal - not the Court.

The slip rule allows the RTB to overlook minor administrative errors once the error in question does not materially prejudice the notice itself which should otherwise be valid.

 

[polecon]

No, he said that was the unchallenged evidence before the tribunal - not the Court.

How would the landlord challenge it?

 

[Sarenco]

Mr tenant, please produce evidence that you didn’t receive the notice until X.

 

[Greenbook]

Mr tenant, please produce evidence that you didn’t receive the notice until X.

He just swears that he got the NoT in the post on a certain date.

If it is ordinary post, how do you prove otherwise.

 

[Sarenco]

I didn’t say I could prove otherwise.

I was asked how would you challenge an assertion.

 

[Bronte]

No, he said that was the unchallenged evidence before the tribunal - not the Court.

The slip rule allows the RTB to overlook minor administrative errors once the error in question does not materially prejudice the notice itself which should otherwise be valid.

Yes you are correct, before the tribunal. And the court didn't dispute that.

As regards your "slip" rule, the service of the documents is very important:

Don't see how this could be fixed.

 

[Bronte]

Even more important is this bit:

Because it means if you in anyway get it wrong your notice is invalid. Ironically the Judge pointed out that the RTB Tribunal were wrong in how they, the experts, interpreted the laws. (not helped of course by so many pieces of legislation which amend bit of each other. )

 

[Bronte]

Here the judge is not dismissing the points about the dates of service, he is taking them into consideration, but because there was a more fundamental problem he preferred he said to focus on that,

(this was the issue about who was the landlord and that in fact no legal person/body signed the notice as that person/body signing had no legal status, landlords on this thread are not really concerned about this because most of us are one man operations and don't have corportate structures)

hj

 

[LarryScott]

For important notices and/or documents like a NoT or a Rent Review. Does delivered and received mean the same thing? So if a notice was personally delivered to the dwelling for the tenant, and to the RTB offices on the same day, and a landlord or courier had photo proof of that, is that sufficient. What if the tenant was on holiday or in hospital.

In the US sometimes served means handing to the recipient.

You get the movie thing where someone says "Hi, are you John Doe?", and then when he says "Uh, yes?", the server hands him the letter and takes a photo (possibly runs a video given Today's tech).

In terms of proving the date. You could prove that the notice was served not-before a date by including a news paper in the video. Hard to prove that you didn't serve it later than that though.

Maybe walk into a shop near the house and take a photo of all the newspapers on sale.

 

[Bronte]

I think it’s worth noting that the High Court explicitly did not base it’s decision on the confusion over the date of posting/service - there were more fundamental problems with the notice.

While this may be true, it's fundamental to us landlords that we get it right, because the RTB will rule against us and there is no telling if another judge would find this a fundamental issue in a case where there was no dispute over who served the notice/who had the legal standing to serve the notice. And it's worth pointing out that when the judge summarised his findings he went right back to discussing the delivery/service dates:

So the judge did consider it.