The Small Print That Matters

At Noble Court, the lease specifies how formal notices are to be served.

The lease states:

IT IS HEARBY AGREED AND DECLARED that:-

(C) Any notice hereby required or authorised to be given to the Lessor or Lessee shall be in writing and may be given in any way of the modes provided by section 196 of the Law of Property Act 1925 with respect to notices to be given to lessors or lessees as the case may be

Most leaseholders probably do not spend much time reading the small print of a decades-old lease. Perhaps they should.

Buried among the traditional language of the Noble Court leases is a provision that has a distinctly modern consequence. It states:

“Any notice hereby required or authorised to be given to the Lessor or Lessee shall be in writing and may be given in any way of the modes provided by section 196 of the Law of Property Act 1925…”

It sounds innocuous, but it isn’t

What does the clause actually say?

Strip away the legal drafting and the position is straightforward.

Where the lease requires or authorises a formal notice, that notice must be in writing and may be served using the methods provided by section 196 of the Law of Property Act 1925.

Section 196 was drafted for a very different age. It provides for physical and postal methods of service, including delivering a notice to the appropriate address, leaving or affixing it at the property in specified circumstances, and sending it by registered post in accordance with the statutory requirements. It does not provide for email. That distinction matters.

Communication is not the same as service

An email may successfully communicate information. But a formal notice is different.

Where a lease prescribes how notice is to be served, the question is not simply whether the recipient saw the message. It is whether the prescribed method of service was followed.

That is particularly important where a notice is intended to trigger a contractual deadline, exercise a right, require action or otherwise have legal consequences.

The fact that email is now the normal means of day-to-day communication does not, by itself, rewrite the wording of the lease.

The statutory mechanism

The Noble Court lease deliberately incorporates the methods of service provided by section 196 into its notice provision. There is therefore a clear distinction between:

ordinary correspondence, which may quite reasonably take place by email, and

formal contractual notice, which must be served in accordance with the mechanism specified by the lease.

If the RMC wishes to rely upon an email as formal notice under this clause, the obvious question is:

“Please identify the provision of the lease or statute which authorises service of this notice by email.”

That is a reasonable question, and one which should have a straightforward answer if the service was valid.

Why this matters

This is not legal pedantry, notice provisions exist to create certainty. They establish how important communications are to be delivered and when they take effect.

A management company cannot simply substitute its preferred method of communication for the method specified in the lease and assume that the distinction does not matter.

The lease is the starting point, the statutory provision incorporated into it is the next.

The wider lesson

There is a broader point here.

Leaseholders are sometimes encouraged to regard the lease as an historical document — complicated, old-fashioned and largely irrelevant to modern estate management. It is none of those things. The lease is the rulebook.

It establishes rights, obligations and, in some circumstances, the procedures by which those rights and obligations must be exercised.

If a formal notice is being relied upon, the method by which it was served deserves just as much attention as the words written on it.

At Noble Court, the relevant clause is remarkably clear about one thing: formal notices are to be dealt with through the mechanism it specifies.

So when the RMC says that a formal notice has been served electronically, the appropriate response is not to accept the assertion simply because the email arrived. It is to ask for the legal basis.

Know what the lease says. Know how it operates. And when someone says “notice has been served”, ask them to prove it.