Q&As

Is it possible to contractually vary the statutory requirements for service of notices under section 196 of the Law of Property Act 1925, either explicitly or impliedly on the basis of the underlying instrument containing different notice provisions?

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Published on LexisPSL on 25/04/2019

The following Property Disputes Q&A provides comprehensive and up to date legal information covering:

  • Is it possible to contractually vary the statutory requirements for service of notices under section 196 of the Law of Property Act 1925, either explicitly or impliedly on the basis of the underlying instrument containing different notice provisions?

Is it possible to contractually vary the statutory requirements for service of notices under section 196 of the Law of Property Act 1925, either explicitly or impliedly on the basis of the underlying instrument containing different notice provisions?

Section 196 of the Law of Property Act 1925 (LPA 1925) is a deeming provision whereby the risk of non-receipt is passed to the recipient, therefore giving the party serving the notice a guarantee of presumed delivery. It has been established that cases which previously suggested that service in accordance with a statutory method gives rise to a rebuttable presumption as to good service were incorrectly decided (see Galinski v McHugh and CA Webber (Transport) Ltd v Railtrack), both decided in the context of another statutory method of service under section 23 of the Landlord and Tenant Act 1927.

The deeming provision is subject to the stated exception regarding return by the postal service. The exception has been held to only apply in limited circumstances. The courts have held that service using a statutory method cannot be avoided by a refusal to sign (see Van Grutten v Trevenen decided in the context of section 28 of the Agricultural Holdings Act 1883). In the Chancery Division case of Re 88 Berkeley Road, London NW9, Rickwood v Turnsek Plowman J stated that:

‘…In my view, the words "…if that letter is

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