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Benchmark - Real Estate Cases & Commentary
Tenancy matters
    •  Rent
        -  Increases
            >  Valid service of notice



Valid service of notice 

A tenant applied for a refund of allegedly overpaid rent from her landlord.

The tenant said that the rent had been overpaid for the following reason. The landlord had delivered a rent increase notice to the tenant, and the tenant had paid the increased rent. The tenant alleged that the rent increase notice not been properly served, and was therefore invalid. Therefore, the increase in rent had never legally been payable.

The tenant said that the landlord had given her the rent increase notice by sliding it under the door of the rented premises.

The landlord could not recall whether she had handed the rent increase notice to the tenant personally, or had slid it under the door.

The Tribunal pointed out that the way in which notices could be served was regulated by section 130 of the Residential Tenancies Act 1987 and the regulations made under that Act.

Neither the Act nor the regulations specifically approved the service of a notice by sliding it under the door of the rented premises.

However the Tribunal considered that the modes of service set out in the Act and Regulations were not exclusive, and that another mode of service could constitute good service if it were proven that the notice did, in fact, come to the attention of the intended recipient.

The Tribunal also considered that there could be greater latitude given in considering what constituted good service where the notice were not a notice of termination of tenancy, but was rather a less extreme type of notice.

The Tribunal noted that, in this case, there was no dispute that the rent increase notice had come to the attention of the tenant shortly after it had been slid under her door.

Therefore, the Tribunal held that the notice had been validly served, and dismissed the tenant’s application.

Argaet v Garrot Pty Ltd [2010] NSWCTTT 613