When serving a unilateral notice of severance by post, s196 LPA 1925 states:
Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to … and if that letter is not returned … undelivered…
What is a registered letter/registered post? I cannot seem to find any statutory definition. Does this have to be recorded delivery, i.e. signed for, or does normal first class post (Royal Mail) suffice?
The issue with ‘signed for’ delivery is that there is a likelier chance the notice returns undelivered, and hence the severance is not valid. With first class post, the notice is effective at the time the letter would be delivered in the ordinary course of post.
How do members usually serve a unilateral notice of severance where the other co-owner is not willing to sign and acknowledge receipt?
Probably the best discussion on severance is Kinch v Bullard [1999]; see Neuuberger J’s opinion.
Reference in LPA 1925 s 196(4) is made to “… notice served if it is sent by post in a registered letter …”. The Recorded Delivery Service Act 1962 s 1 provides:
“Any enactment which requires or authorises a document or other thing to be sent by registered post (whether or not it makes any other provision in relation thereto) shall have effect as if it required or, as the case may be, authorised that thing to be sent by registered post or the recorded delivery service;…”.
If it is likely that at the last known address of the addressee (or anyone else at that address) that the addressee (or anyone else) will not sign/accept the recorded delivery service then it is acceptable to simply send the notice to sever by ordinary post which is then deemed to have been served once it is physically delivered by the postman (s195(3)). It should be possible to obtain from the Post Office at least a proof of posting.
Thanks for your response. I did read this thread before posting, but noted that it specifically did not refer to whether the notice must be sent to the other party via recorded delivery, or whether first class post would suffice.
According to PLC, “A certificate of posting is not equivalent to registered post” I am therefore not convinced that proof of posting works as effective severance.
On a related note, what if a letter was sent by post advising the co-owner that the half share owned by (our) client has been charged (by way of equitable charge) for say for the amount of £1. Irrespective of whether the letter is received, does not the fact that the client has acted in a way contrary to a joint ownership, immediately effect a severance. I do recollect reading that somewhere, or attending a seminar, but cannot recall now.
I agree with Haroon that proof of posting is probably not sufficient.
With regard to his other point, service of a notice is just one method of effecting severance. Dealings inconsistent with the continuance of the joint tenacy is another, separate method of effecting severance. Accordingly, there is no requirement to give notice to any other co-owner – the equitable charge is sufficient in itself (and is effective immediately). I understand divorce lawyers often recommend charging their client’s property interests for that specific reason.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I did not say in my post that "According to PLC, “A certificate of posting is not equivalent to registered post”.
What I said was "If it is likely that at the last known address of the addressee (or anyone else at that address) that the addressee (or anyone else) will not sign/accept the recorded delivery service then it is acceptable to simply send the notice to sever by ordinary post which is then deemed to have been served once it is physically delivered by the postman (s195(3)).
My follow-on comment “It should be possible to obtain from the Post Office at least a proof of posting” was merely intended to suggest it would do no harm to obtain such proof but proof of posting, per se, is irrelevant to effect severance as demonstrated in s195(3) above.
@malcfinney1 my apologies - I did not intend to misquote… and usually I take your answers as gospel! The point that I still remain unsure of, is whether a letter sent merely by first class post (even with a certificate of posting), is sufficient as service. I think this must be by recorded delivery. According to s.196. (Unfortunately, I cannot find the reference to s195(3) that you refer to.
My turn to apologise, “s195(3)” should read “s196(3)”.
S196(3) provides that service is effective where the letter is left “at the last. known place of abode”.
Thus, notice sent by ordinary post which reaches the the person’s last known address which occurs once the postman has delivered the letter has been validly served.
You may want to read the judgment in Fantini v Scruttonhttps://www.bailii.org/ew/cases/EWHC/Ch/2020/1552.html which involved severance of a joint tenancy served by registered post where the severance notice was returned undelivered. It discusses the legal issues round section 196.
i) you can sever by recorded delivery or first class post
ii) if by recorded delivery CHECK whether it has been received as if returned undelivered, and that can sometimes take weeks, then service is not effective.
First class post seems to be a better bet, although that could still lead to questions of whether it was in fact posted. Therefore, if you wanted to adopt a belts and braces approach, do both?
Perhaps, by doing both, a concern might be as to identifying the date precisely when severance occurred given that the dates may be different under each of the two options.
Re your “charge” point, severance occurs where a joint beneficial tenant operates upon his own share; this would include charging/mortgaging his/her own equitable interest. This would sever the beneficial joint tenancy. Under this approach strictly speaking ] there is no need to notify the other joint tenant.
I thought we had kept the lid on the can of worms. @malcfinney1 … I would be interested to hear more about your research. Is it sufficient to rely on a “read/delivery” receipt by email? What if it went into the recipient’s junk box? I guess it’s like saying what if the recipient never received the letter, but what if the recipient has created a new email address, or uses more than one?
I make no comment on the legal property technical issues, but in terms of emails standing up you might want to try Frama https://www.frama.co.uk/rmail/ . You need to speak to Mike Roberts – he is really helpful - mike.roberts@frama.co.uk, 07545 292184.
I know this is an old post, but relevant to my query. I am happy to advise my client to serve by registered or signed for - but what if she is the one that signs for it? Knowing that her husband is abroad. I seem to recall many years ago reading up that this would still be valid - the test being ‘not returned undelivered’.
Failing that (hoping that does not fail ) - what suggestion would members make for a unilateral notice where the client knows the other party is abroad (no known address abroad)?
My understanding is that it must be served on the last known address. It seems pointless to serve by recorded delivery and sign it yourself. Why not just post first class. However, I believe the main question is, is it being served at the last known address? Do you have any other contact details. If service by email works, then why not whatsapp?
) - what suggestion would members make for a unilateral notice where the client knows the other party is abroad (no known address abroad)?