When can I use a torts notice yet?

[atticus]

If the notice is an intention to sell the goods, you have to send it by registered post or recorded delivery service.

This surprised me*, so I checked, and it is indeed correct: para. 6.4 of Schedule 1:

Notice of Intention to Sell Goods

6(1) A notice under section 12(3) shall—

(a) specify the name and address of the bailee, and give sufficient particulars of the goods and the address or place where they are held, and

(b) specify the date on or after which the bailee proposes to sell the goods, and

(c )specify the amount, if any, which is payable by the bailor to the bailee in respect of the goods, and which became due before the giving of the notice.

(2) The period between giving of the notice and the date specified in the notice as that on or after which the bailee proposes to exercise the power of sale shall be such as will afford the bailor a reasonable opportunity of taking delivery of the goods.

(3) If any amount is payable in respect of the goods by the bailor to the bailee, and become due before giving of the notice, the said period shall be not less than three months.

(4) The notice shall be in writing and shall be sent by post in a registered letter, or by the recorded delivery service.

*I cannot think of any other statutory provision or court rule (as distinct from contractual provisions) requiring anything other than ordinary post - no doubt someone will correct me on this.

[islandgirl]

Very good to know thank you for checking Atticus. The usual problem arises of course when the person refuses delivery....

[atticus]

and that is why it surprised me. I remember more than 30 years ago a talk by a Master of the High Court making this very point.

[R0b]

This surprised me*, so I checked, and it is indeed correct: para. 6.4 of Schedule 1:




*I cannot think of any other statutory provision or court rule (as distinct from contractual provisions) requiring anything other than ordinary post - no doubt someone will correct me on this.

you may be even more surprised but, 196(4) of the Law of Property Act 1925 is an example of which recorded delivery is mentioned. I say mentioned because the Recovered Delivery Service Act 1962 was brought in so that any references to legislation referring to registered post can be construed as meaning recorded delivery.

Edit: and to the point about refusal of service if recorded delivery.. I presume section 7 of the interpretation Act would apply.

References to service by post.


Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

[atticus]

"...unless the contrary is proved..."

Has anyone had a case in which a defendant says something like that he never signs for recorded delivery post?

[islandgirl]

Exactly. He could say "Yes I remember the postman bringing me something and asking me to sign and I refused" (and these days photograph the evidence of a disgruntled postman holding out a letter)

[R0b]

Not specifically, but I am pretty certain there is analogous case law around service under the CPR where defendants have refused to sign for recorded post. If I recall the court held that recipients cannot frustrate the process of service by simply refusing to sign for it, since it the letter was brought to their attention and there's no defence to say that you had never received it.

Arguably and maybe this is more of a technical point, the requirement is for the sender to carry out the act of sending the notice by recorded delivery and nothing suggests that for service to be deemed valid, the recipient must physically sign for it.

[islandgirl]

I think I would send it by recorded delivery and also send 2 copies with normal stamps from 2 post offices! Belt and braces...

[R0b]

I think I would send it by recorded delivery and also send 2 copies with normal stamps from 2 post offices! Belt and braces...

I agree with belts and braces approach, but defintiely important to obtain the proof of postage receipt, think they officially call it certificate of posting but that should cover either aspect. If this was ever argued, I think the courts would take a common sense approach as I mentioned above, that the defendant cannot frustrate the process by simply refusing to sign for a letter when brought to their attention.

[RageSloth]

The courts would interpret 'in writing' to cover text messages but the Act defines what in writing means for the purposes of the Act so you have to follow what the Act says otherwise, you are deemed not to have complied.

For notices to oblige the owner to collect the goods, you have to give it in writing and either deliver it personally, leaving it at their address or send it by post.

If the notice is an intention to sell the goods, you have to send it by registered post or recorded delivery service. Registered post as I understand it is a mail tracking service that doesn't exist anymore so you would need to use another form of recorded delivery or obtain a proof of postage receipt which would be sufficient for meeting the requirement of registered post.

Yes.

"The notice shall be in writing, and may be given either—

(a)by delivering it to the bailor, or

(b)by leaving it at his proper address, or

(c)by post."


I regret using the signed for, now I have to restart the 30 day count :/ (not selling it, just disposing)

I dont know if certificate of postage actually records WHERE I sent the letter to, but am checking with the post office now.
I will possibly go further and film the letter's contents, then film me entering it into the envelope and being handed the specific certificate... and do the same with the other post office.

WIll also be interesting what their reason for the previous 2 signed for letters dissapearing is... I have just ASSUMED nobody answered the door.

[R0b]

Personally if I sent the notice by recorded delivery and it was noted as refused, I wouldn't be worrying as it's on the defendant to prove that it wasn't properly served or delivered. So I wouldn't bother re-sending a second notice but it up to you if you want to do that, you will need to as you say start the clock again.

I'm a bit rusty on the Torts legislation but I don't think there is any power to merely dispose of the goods so if that's your intention, then the Torts (IG) Act is not the correct law you should be relying on. The Act allows you the power to dispose of the goods by way of sale, but not on its own dispose of it in a way you see fit such as sending it to be crushed.

If anything, your best bet of disposing of the caravan without a sale would be to make an application to the court under Section 13 to explain the caravan has no resale value and therefore you are seeking an order from the court to dispose of it without the need for sale. One might argue that the Act doesn't grant the courts the power to dispose of the goods without a sale occurring, in which case you could request the sale of the caravan for a nominal fee of £1 given it doesn't even have a scrap value, but you would need to provide evidence.

You could alternatively under Section 12 sell the vehicle at a nominal amount without a court order but you would potentially run the risk from the owner if the caravan had a higher value, so this is where you would need to retain evidence to show you have taken steps to ascertain its value.

[RageSloth]

Personally if I sent the notice by recorded delivery and it was noted as refused, I wouldn't be worrying as it's on the defendant to prove that it wasn't properly served or delivered. So I wouldn't bother re-sending a second notice but it up to you if you want to do that, you will need to as you say start the clock again.

I'm a bit rusty on the Torts legislation but I don't think there is any power to merely dispose of the goods so if that's your intention, then the Torts (IG) Act is not the correct law you should be relying on. The Act allows you the power to dispose of the goods by way of sale, but not on its own dispose of it in a way you see fit such as sending it to be crushed.

If anything, your best bet of disposing of the caravan without a sale would be to make an application to the court under Section 13 to explain the caravan has no resale value and therefore you are seeking an order from the court to dispose of it without the need for sale. One might argue that the Act doesn't grant the courts the power to dispose of the goods without a sale occurring, in which case you could request the sale of the caravan for a nominal fee of £1 given it doesn't even have a scrap value, but you would need to provide evidence.

You could alternatively under Section 12 sell the vehicle at a nominal amount without a court order but you would potentially run the risk from the owner if the caravan had a higher value, so this is where you would need to retain evidence to show you have taken steps to ascertain its value.

Firstly, I just found out that both of the previous 2 letters which were both first class signed for have been lost in the post... they were never even attempted to be delivered. They were sent from different post offices, but the one they were sent to is being restructured and experiencing enormous problems.. and only £7 special delivery mail is being prioritized atm... so I sent that yesterday.. unbelievable.

Secondly either you are incorrect or it is very ambiguously worded becasue others have said that I should be able to dispose of it with a one month notice. I will pay someone to take it away, and its not my responsibility what happens to it at that point. I will jump off a cliff before restarting the clock to 3 months so I can sell it, I have much bigger problems than this and dont want to think about it anymore before I meet the aformentioned cliff. He signed a contract, this is such BS.

It looks like it's fairly valuable though, maybe worth 10k+, he managed to tow it there, the inside looks nice, it doesnt seem to be letting rain in, so what else could lower the value?

[RageSloth]

Thanks for the post, I'm I guess in a bad mood now. I should have put in the tenancy contract something about my being able to dispose of anything after lack of payment.. will do this next time.

[R0b]

Secondly either you are incorrect or it is very ambiguously worded becasue others have said that I should be able to dispose of it with a one month notice. I will pay someone to take it away, and its not my responsibility what happens to it at that point. I will jump off a cliff before restarting the clock to 3 months so I can sell it, I have much bigger problems than this and dont want to think about it anymore before I meet the aformentioned cliff. He signed a contract, this is such BS.
It looks like it's fairly valuable though, maybe worth 10k+, he managed to tow it there, the inside looks nice, it doesnt seem to be letting rain in, so what else could lower the value?

I'm open to be corrected but, my opinion is that you do not have the power to dispose of the goods any way you see fit under the Act. I checked the relevant sections and I don't believe it is ambiguous in any way. I've set out below and highlighted the relevant parts that make it clear.

12 Bailee’s power of sale.


(1)This section applies to goods in the possession or under the control of a bailee where—
(a)the bailor is in breach of an obligation to take delivery of the goods or, if the terms of the bailment so provide, to give directions as to their delivery, or
(b)the bailee could impose such an obligation by giving notice to the bailor, but is unable to trace or communicate with the bailor, or
(c)the bailee can reasonably expect to be relieved of any duty to safeguard the goods on giving notice to the bailor, but is unable to trace or communicate with the bailor.
(2)In the cases of Part I of Schedule 1 to this Act a bailee may, for the purposes of subsection (1), impose an obligation on the bailor to take delivery of the goods, or as the case may be to give directions as to their delivery, and in those cases the said Part I sets out the method of notification.
(3)If the bailee—
(a)has in accordance with Part II of Schedule 1 to this Act given notice to the bailor of his intention to sell the goods under this subsection, or
(b)has failed to trace or communicate with the bailor with a view to giving him such a notice, after having taken reasonable steps for the purpose,
and is reasonably satisfied that the bailor owns the goods, he shall be entitled, as against the bailor, to sell the goods.

As above, section 12 clearly indicates that you have the power to sell the goods, not dispose of as you see fit. You should be careful of getting rid of something that has a particularly significant value such as a caravan. In your own words, you seem to accept that the caravan is in good condition and could have a value of around £10k so disposing of it without a sale or selling it at an entirely low value without good justification, you then run the risk of a claim being made. The same can be said if the caravan actually belongs to a third party and you didn't do enough due diligence as to ownership because, per section 12(3) above, you need to be reasonably satisfied that the person you contracted with owned the goods.

I will list below what I think is good practice when it comes to this kind of situation, but you are more than free to completely ignore it and do what you please. If for some reason the owner or a third party sues you for loss of the caravan or failing to obtain a reasonable sale value, then only you are to blame for this.

1. Carry out an inspection of the goods (in this case the caravan). Take plenty of pictures inside and outside as to its condition, contents etc. including the VIN number also. Good practice would be to keep a written inventory of any loose goods along with photos just in case they claim something was there when it was not.

2. For vehicles specifically, it would be sensible to carry out a vehicle check to make sure the registered keeper matches up with the person who you contracted with. Assuming they both match, you should be able to satisfy the assumption the goods belong to the tenant.

3. Do some reasonable checks on the vehicle as to its value either online, through an independent third party or some other means. Knowing the mileage would help but if not then getting a rough idea based on the age of the caravan might be useful to understand a rough estimate of its value. For specialist items or goods, you are best taking it to an expert for valuation if finding a valuation is not possible by other means.

4. If you proceed to sell the caravan, you should take reasonable steps to obtain the best price for it, whether that's advertising online or taking it to auction. Underselling the caravan deliberately just to get rid of it opens you up to a claim. Always keep a record of receipt of the sale for at least 6 years alongside other documentary evidence such as letters, emails etc. Personally I allow up to 7-8 years to ensure that there is definitely no way the owner could claim against me.

5. If you are unsure how to sell the caravan or if you want to dispose of it because you are unable to obtain a sale or for whatever reason, it would be best practice to make an application to the court under section 13 of the Act. The court has the power to order a sale or attach any conditions as it sees fit but they will need to see evidence that you have made attempts to contact the owner and/or tried to sell it if the vehicle has some value to it that is 'de minimis' which means a very small amount that is not worth the time.

6. Remember, if a claim is made against you, you will need to justify your actions and why you decided to go down route A instead of route B. I would say, however, that if you went down the court order route, you are effectively absolving yourself of any liability because it's unlikely that a court would find you liable if another judge has already determined the appropriate steps to be taken as to the caravan. It's not 100% foolproof but there would be a strong presumption making a finding against a court order unless you have misled the court at the time in obtaining that order.

7. For any sale, you need to hand over any proceeds of sale less your reasonable costs incurred as a result of the sale which can be deducted from the proceeds. Owner will have 6 years to claim the money otherwise you should be in the clear as the limitation period to bring a claim would be 6 years.

I should have put in the tenancy contract something about my being able to dispose of anything after lack of payment.. will do this next time.

That would be a sensible idea, and then you do not need to rely on this Act since you have a contractual right.

[atticus]

For what it is worth, I agree with R0B in post #44.

Section 12(5) needs to be borne in mind:

(5) A bailee exercising his powers under subsection (3) shall be liable to account to the bailor for the proceeds of sale, less any costs of sale, and:

(a) the account shall be taken on the footing that the bailee should have adopted the best method of sale reasonably available in the circumstances, and

(b) where subsection (3)(a) applies, any sum payable in respect of the goods by the bailor to the bailee which accrued due before the bailee gave notice of intention to sell the goods shall be deductible from the proceeds of sale.