Are you Serving Documents and Notices to Tenants via email? Here is what you need to know!

EAC has recently been contacted by NSW Fair Trading after the Regulator was contacted by the NSW Civil and Administrative Tribunal “NCAT” regarding their concerns encompassing the service, via email, of Termination Notices.

It would appear, the first round of electronically served termination notices are being tendered in termination proceedings before NCAT. It comes with little surprise that the issues surrounding dubious service of notices electronically are being raised by the Honourable Tribunal.

As our Members are no doubt aware, changes were recently made to the Residential Tenancies Act 2010 regarding the service of notices and other documents under the Act. The changes to the service of notices came about pursuant to the Electronic Transactions Legislation Amendment (Government Transactions) Act 2017. Schedule 1 of the Act provided for changes to section 223 of the Residential Tenancies Act.

Section 223 Service of notices and other documents

  1. A notice or other document that is authorised or required by this Act or the regulations or a residential tenancy agreement to be given to or served on any person may be given or served by:
    1. in the case of a natural person:
      1. delivering it to the person personally, or
      2. delivering it personally to a person apparently of or above the age of 16 years at the person’s residential or business address, or
      3. delivering it in an envelope addressed to the person and leaving it in a mailbox at the person’s residential or business address, or
      4. sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
      5. sending it to an email address specified by the person for the service of documents of that kind, or
      6. any other method authorised by the regulations for the service of documents of that kind, or
    2. in the case of a corporation:
      1. leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the corporation or to an address specified by the corporation for the giving or service of documents, or
      2. sending it to an email address specified by the corporation for the service of documents of that kind, or
      3. any other method authorised by the regulations for the service of documents of that kind, or

EAC Members that attended the recent 2017 EAC Insight Roadshow will be aware of some of the concerns regarding the effective service of a notice via email by agents. Notwithstanding, the changes regarding electronic service are being heralded as long overdue and extremely relevant in 2017.

What should a EAC Member do if they want to serve notice on a tenant via email

The first thing to note is that you will need the tenant to agree to you serving them via email. We have created the Email Service of Notices and Documents Authorisation Form for this purpose. This could be emailed to a tenant for their approval and authorisation to receive notices under the Act.

If a EAC Member has an email address loaded on the tenant screen in the rental software, which was originally provided on the Tenancy Application, can the Member use that email address?

Best practice is to obtain a written authorisation from a tenant. The tenants should ‘opt-in’ to receiving notices electronically. Remember, email addresses can be changed for various reasons. A prudent EAC Member would obtain a current authorisation from a tenant prior to serving any notice electronically. Notwithstanding, this authorisation could be tendered in evidence in any proceedings before NCAT.

Does electronic service differentiate between a termination notice and service of other documents?

No, unlike the former Section 130 of the former tenancy Act, section 223 does not distinguish between service of a termination notice and the service of other documents

Section 85 Termination of periodic agreement

  1. A landlord may, at any time, give a termination notice for a periodic agreement.
  2. The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
  3. The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
  4. This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

Section 87 Breach of agreement

  1. A landlord may give a termination notice on the ground that the tenant has breached the residential tenancy agreement.
  2. The termination notice must specify a termination date that is not earlier than 14 days after the day on which the notice is given.
  3. The termination notice may specify a termination date that is before the end of the fixed term of the residential tenancy agreement if it is a fixed term agreement.
  4. The Tribunal may, on application by a landlord, make a termination order if it is satisfied that:
    1. the tenant has breached the residential tenancy agreement, and
    2. the breach is, in the circumstances of the case, sufficient to justify termination of the agreement, and
    3. the termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
  5. In considering the circumstances of the case, the Tribunal may consider (but is not limited to considering) the following:
    1. the nature of the breach,
    2. any previous breaches,
    3. any steps taken by the tenant to remedy the breach,
    4. any steps taken by the landlord about the breach,
    5. the previous history of the tenancy.

Section 55 (2) Access generally by landlord to residential premises without consent

A landlord, the landlord’s agent or any other person authorised by the landlord may enter residential premises during a residential tenancy agreement without the consent of the tenant, after giving notice to the tenant, only in the following circumstances:

  1. to inspect the residential premises, not more than 4 times in any period of 12 months, if the tenant has been given not less than 7 days written notice each time,
  2. to carry out or assess the need for necessary repairs (other than urgent repairs) to, or maintenance of, the residential premises, if the tenant has been given not less than 2 days’ notice each time,
  3. to carry out, inspect or assess the need for work for the purpose of compliance with the landlord’s statutory obligations relating to the health or safety of the residential premises, if the tenant has been given not less than 2 days notice each time,
  4. to value the property, not more than once in any period of 12 months, if the tenant is given not less than 7 days notice each time,
  5. to show the premises to prospective tenants, a reasonable number of times during the period of 14 days preceding the termination of the agreement, if the tenant is given reasonable notice each time,
  6. if the landlord and tenant fail to agree under section 53 to show the premises to prospective purchasers, not more than twice in any period of a week, if the tenant is given not less than 48 hours notice each time.

Section 41 Rent increases

  1. The rent payable under a residential tenancy agreement may be increased only if:
    1. the tenant is given a written notice by the landlord or the landlord’s agent specifying the increased rent and the day from which it is payable, and
    2. the notice is given at least 60 days before the increased rent is payable.

Do you include the ‘day’ you serve the notice electronically?

The Tribunal will define a ‘day’ as a ‘clear day’ therefore, you do not include the day you serve the notice in your relevant calculation of a prescribed notice period under the Act.

Do you have to email all the tenants or can you serve the notice electronically on one tenant?

This is provided for in Section 223(3) which provides if there is more than one landlord or tenant under a residential tenancy agreement, a notice required to be served on a tenant or landlord under the agreement is taken to be served on all the tenants or landlords under the agreement if it is served on one of the tenants or landlords.

 

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Lisa Jemmeson
Senior Associate
Jemmeson & Fisher Solicitors and Accountants

Jemmeson & Fisher are the providers of real estate legal advice to EAC and Lisa represents EAC on the NCAT Consumer and Commercial Division Consultative and General/Commercial Forums

As a reminder for Members, property managers have access to specialist tenancy solicitors at Jemmeson & Fisher Solicitors who will assist you with your inquiries. When the need arises just give us a call on 1300 137 161 and we will put you through.

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