Commercial Update 73: Noticing Notices

The service of notices clause in a contract is often the poor relation when being drafted and only looked at after the issue has arisen as to whether a notice has been served. Rather than waiting until the rain falls to check whether the roof has holes, I thought we should look in this update at the area of serving notices and what to look out for.

Whenever notices are served under a contract, usually there are strict rules governing the form and content of a notice and how it should be served.

The starting point then is the form/content of the notice. While case law does suggest that minor errors will be ignored if the form and/or content notice is clear and its purpose obvious, getting the form and content of a notice correct form the start is important.

This is different though to getting the notice properly served. Here, any requirements in the contract for how a notice should be served must be absolutely be complied with. If they are not, then putting it bluntly, the person who served it will not be able to rely on it.

So, if you have the correct form of notice and have served it correctly, what else is there?

The other part is making sure that any other contractual or broader legal requirements are complied with.  

These would include the following:

  • Make sure the recipient is properly named – where parties may have changed or the contract assigned or novated, this could be more easy to get wrong than it sounds – check twice to avoid getting it wrong once….
  • Sometimes, contracts will outline when notices can be served, for example only on a set date or period.  Check this to ensure both that it is done in time and so that it is valid – give yourself plenty of time within that time window to prepare your notice and check the rules. If you know when a time window is coming up, set up plenty of reminders – we’ve seen plenty of examples of where time limits are missed….
  • Make sure you find out where the notice is to be served. find out where a notice should be served. If for a company and stated to served at its registered office, check where this is at Companies House to make sure it has not changed. Sometimes a contract may dictate another address for a company so always check – do not assume that serving it at the registered office will work.
  • Sometimes, a specific method of service may be required and this needs to be checked to be sure whether a particular method of service is specified. Most contracts specify post, hand-delivery, in writing, and sometimes email. Some still also specify fax, surprisingly enough. Where a particular form of service is not nominated, there is Section 196 of the Law of Property Act 1925, which sets out that a notice must be in writing and either: left at the recipients last known address or registered address, or, sent by registered post to the last known address or registered address – in which case it will be deemed served when the letter is delivered Do remember then that if sending a notice via registered post, delivery is required in order for the notice to be considered served. This means that any letter should be tracked to ensure and record proof of delivery, in case this is disputed later.
  • Checking what other conditions there may be in the contract. For example, for some break notices in lease, the tenant may need to be up to date with its rent or not in default of its obligations to be able to serve a break notice.

In conclusion, when considering serving a notice, start early (if within a set time period), take advice and check all angles before sending it. If receiving a notice, check that the various rules and provisions set out above have been complied with and take advice if you are not sure.

Regards to all,