"Address for Service" S(2) Interpretation

[xris]

The RTA is based on an Australian model, and the Aussie version/s have been updated more recently than ours. I think it is therefore only reasonable to assume that we should look to Oz for guidance on what our RTA means, the way it will be interpreted, and the way it will develop in the future.

Here is something recent that I found. Apologies for the sloppy editing.


http://www.tenantsact.org.au/


http://www.tenantsact.org.au/Advice/Residential%20Tenancy%20Agree%202.pdf



The address for service of documents
Address for service
Notices or any other documents may be delivered in person, by post, by registered courier or by fax to the Lessor at:
- the address of the Lessor's agent above; or
- the following email address: _____________________________;or
- __________________________________________________ ____
Notices or any other documents may be delivered in person, by post, by registered courier or by fax to the Tenant at:
- the premises to be let under this agreement; or
- the following email address: ______________________________;or
- __________________________________________________ _____
It is noted that service of a termination notice must be served upon the tenant/s personally or by leaving it at or by sending it by pre paid post to the residence or place of business of the tenant/s (or the head office, registered office or principle office of a body corporate) or at the address for service detailed above (see Regulation 5 of the Residential Tenancies Regulations).
The lessor and the tenant acknowledge that notices forwarded by the methods identified above shall be effective unless another reasonable method for the service of documents has been communicated in writing to the other party.
.................................................. .

98. (1) At the commencement of the tenancy, the lessor and the tenant shall each give an
address for service of notices.
(2) If the address changes during the tenancy, the lessor or tenant must advise the other party of the new address for service within 2 weeks of the change.




Residential Tenancy Agreement – Correct as at 1/3/06 Page 11 of 12
Date of the Agreement
Lessor’s Signature
Witness (to lessor’s signature)
Tenant’s Signature/s
Witness (to Tenants signature



99. On vacating the premises, the tenant must advise the lessor of a forwarding address.

[Keys]

Update

Just received a reply to my Official Information Act request.

Dear John,

Thank you for your letter dated 16 March 2007 whether a facsimile number is sufficient as an address for service.

Section 13A (1) of the Residential Tenancies Act 1986 requires both landlords and tenants to provide an 'address for service' in the tenancy agreement. Our view (my emphasis) is that a facsimile number would not be sufficient as an address for service for the purposes of section 13A (1), because an address for service must be a physical address.

This is not explicitly stated in the defination of 'address for service' in section 2 but is supported by the fact that:

• section 13A (2) states that 'A Post Office box number or other similar postal address shall not be a sufficient address for the purposes of subsection (1) of this section', so a post only address definately cannot be an address for service
• the defination of a 'contact address' in section 2 expressly includes telephone numbers but the defination of 'address for service' does not, which implies that a telephone number cannot be an address for service.

I believe that the insertion of a facismilie number for document serving was done as an ammendment.

Furthermore, section 136 (1)(b) and (c) of the Act provide that notices may be posted to an address for service, or served to the premises to which that address for service relates by attaching the notice to the door or by placing the notice in the mailbox. The term 'address for service' is clearly used here to refer to a physical address.

In contrast, section 136(1)(d) does not mention the term 'address for service' at all, instead providing for service to 'a facsimile number specified on the tenancy agreement ... as a facsimile number by which the landlord or tenant will accept service of documents relating to the tenancy'. If section 136(1)(d) was intended to allow facsimile numbers to be provided as an address for service, actually stating that would have been clearer and more concise. Instead, section 136(1)(d) rather carefully avoids the term 'address for service' and simply provides a supplementary option for the service of documents.

Possibly that 136(1)(d) is an ammendment and the words 'address for service' were not included as an oversight?

Anyway, that's the reply. "Our view" is simply that. It needs to be challenged.

[BlamBlam]

Are there?

Your background might be of some interest here blamblam. Choose to elaborate?

xris

ummm sure....I am an architect and legal executive - have specialised in property and have been a landlord since I was 22 (now 43).

I own around a dozen properties and 'manage about another dozen' for family and friends on a barter basis.

I am an Aries, like walks on the beach and candlelit dinners....not sure what else you want to know?

[Keys]

So a fax transmission journal print-out showing the details
may satisfy that principle, depending on the adjudicator.

The adjudicator will have no choice. Providing the documant was properly transmitted then that is sufficient proof. The adjudicator does not have any discretion on this matter. It's very clear in the Act.

[Perry]

Clarification

I expressed that poorly, it seems.

I was not disputing a fax number potentially being an
acceptable AfS.

I wonder how the Electronic Transactions Act interfaces, here?

What I was seeking to convey is that the principle behind
the rule is that a person is made aware that a process is
going to occur in which they, as an 'interested party' are
implicated and therefore should attend.

And, any Court of competence would need to be satisfied
that 'the accussed' was made aware of the hearing process,
irrespective of how is was achieved and the dead letter of
the law.

So a fax transmission journal print-out showing the details
may satisfy that principle, depending on the adjudicator.

[xris]

I would tend to agree with keys, that if a fax number can be an afs (still not sure though), then perry's comment does not apply here. this is because the recipient has volunteered that he is willing to accept service at his given fax number (s.136), and so if it is received or not is at his own risk.

xris

[Keys]

One element I see as missing in this discussion is the
reason for AfS: viz. proof of delivery to the recipient.

Proof of service by fax is provided for with the writing of S136 ( 8 )

[Perry]

Proof - poof!

One element I see as missing in this discussion is the
reason for AfS: viz. proof of delivery to the recipient.

Although the TT is a kangaroo court, there is a general
principle in 'process' that the person being 'accused' has
been informed that they are so accused and that there is
proof (of delivery of the accusative documents) so that the
court concerned can be fairly satisfied that the
person knows they are so accused, is aware of the fixture
details (where & when) at which the matter will be considered
and just what they're being asked to defend.

There are oddball aspects to this proof of service axiom.
E.g. a trespass notice is deemed to have been served if it is
dropped at the feet of the person named in the notice.

The RTA equivalent (?) is putting it in a letterbox. For ships,
it used to be sufficient for the notice to be affixed to the mast!

My guess is that any reflection on address for service would
turn about whether or not the delivery mechanism used
could be reasonably deemed to have effected notice to
the person accused, so that said person can be fairly
adjudged <whatever> in absentia, if they don't appear.

[Keys]

Indecision is a terrible affliction, and afflicted I now am.

Buggar! That's a problem.

So, an address for service- yes.

AFS a po box - no

Agreed, however since there is an AFS which the tenant may not be able to use (as in your quote below) I'll put a P.O. Box in there for the tenants convienance.

AFS a fax number or email address - yes.

AFS fax number - yes (it's in the Act)
AFS e-mail - no (not in the Act and therefore not defendable)

Well, what do keys and the world think?
xris

I've appreciated this discussion. Your point of S13a was very good and one which I had not thought of. I'm sure when (yes when) I get taken to task I'll now have a good arguement.

Don't forget now xris, I'll post here when I get a reply from tenancy services.

Cheers

[xris]

Indecision is a terrible affliction, and afflicted I now am.

I think the phrase "or other similar postal address" means just that - that it must be an address whither posted mail can be delivered.

This includes po boxes, dx box, but not an email or fax number, because these are not postal addresses.

The definition of AFS on p4 does not refer to a postal address, just to an address at which documents will be accepted. Also it does not specify that this must be delivered or accepted in person. Therefore a fax number is adequate if one party indicated that that is how they will accept service of documents. This is further supported by s.136.

So, an address for service- yes.

AFS a po box - no

AFS a fax number or email address - yes.

Well, what do keys and the world think?

xris

[Keys]

From another angle...

AFS must be provided. (s. 13a1)

Documents can be served by means of fax if fax number given. (s. 136)

AFS cannot be a post box…(s. 13a2)

…or other similar postal address (s.13a2)

I believe fax, email etc would fall under the definition of “…other similar postal address…”

Therefore a post box, a fax number and an email address will not suffice as an address for service.

xris

True, however.

If the LL's contact address is sufficiently different to warrant a seperate inclusion in the Act (S13a 1a) and the address for service is listed seperately (S13a 1f) Then I would suggest that the LL's contact address is not required to be the address for service.

Following that, the LL's contact address may just as well be the LL's place of work, church, sports club etc. as the word "address" is not defined in the Act.

I would postulate (new learned word, grin) that the phrase "or other similar postal address" is superseded by specific inclusion of the word facismile in (S136 1d) and (S136 8 ) and that your argument that a fax number is the same as a P.O. Box or e-mail address is incorrect.

Very helpful discussion though Xirs. Having this debated before I end up at the TT will aid me with my arguement I'm sure.

And I will end up there at one stage debating it, I'm also sure.

[xris]

Has anyone ever been stung for not providing an address for service? There are alot of landlords out there that don't do written TA's so they can't be providing them...

Are there?

Your background might be of some interest here blamblam. Choose to elaborate?

xris

[BlamBlam]

Ahhh different markets present different issues I guess!

Has anyone ever been stung for not providing an address for service? There are alot of landlords out there that don't do written TA's so they can't be providing them...

[xris]

From another angle...

AFS must be provided. (s. 13a1)

Documents can be served by means of fax if fax number given. (s. 136)

AFS cannot be a post box…(s. 13a2)

…or other similar postal address (s.13a2)

I believe fax, email etc would fall under the definition of “…other similar postal address…”

Therefore a post box, a fax number and an email address will not suffice as an address for service.

xris

[xris]

I find it interesting that you have tenants who you wouldn't want knowing where you live...why do you rent to them then?

Because I have a business to run, that's why.

Unfortunate though it may be, sometimes it is necessary. Even if not necessary for safety's sake it is prudent not to mix business with private. Tenancies are business.

xris