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Suppose Larry the landlord applied to court for possession order and presents a back dated copy of section 21 notice from 65 days ago.

The court serves notice of hearing to the property and tenant attends claiming it is the first they've seen of the landlord wanting the property back and there was never any such notice served. What does the court do? Accept or reject that valid notice was served?

Conversely, what stops a tenant from quietly discarding notices received and then in court denying receiving them?

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The onus lies on the landlord

The landlord is the one asserting a right (to evict), therefore, they bear the onus of proving that they have that right.

The court will look at the evidence both parties have that the notice was served. For the tenant this is likely to be brief testimony that they never received it. For the landlord, they will testify as to how it was served (personal service, mail etc.) and provide evidence that supports that testimony (photos of them handing it to the tenant, receipts for mail etc.). Please note that only some types of service are valid and laws around service are highly technical.

The court will give weight to the evidence (decide what they believe and what they don’t, who they find reliable and who they don’t).

The onus in a civil case is “the balance of probabilities” which means if they find the landlord’s version more likely then the notice was served. If they find the tenant’s more likely or both equally likely, it wasn’t.

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    +1 This is why in such situations you are advised to serve by multiple means e.g. an email and a physical letter sent with proof of delivery.
    – deep64blue
    May 31 at 12:39
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    @deep64blue emails may or may not count as valid service. It depends on the jurisdiction and the legislation. Similarly, mail may not be a valid way to serve some notices. Courts are pragmatic but if the law says service must be by X, Y or Z, then A isn’t service. As I said, these things are technical.
    – Dale M
    May 31 at 12:40
  • Absolutely but if you go into court having evidence of valid service as well as other good faith efforts that tends to enable the Court to look favourably on your case.
    – deep64blue
    May 31 at 12:42
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    @DaleM Even if email does not count as valid service, could it still be helpful to corroborate that the eviction has been served in some other way? I'm imagining that a tenant will have a harder time claiming they know nothing about this eviction if an email trail discussing it can be produced?
    – xLeitix
    May 31 at 12:43
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    @xLeitix I don’t know the particular legislation but if it says the defendant must be served in a particular way then it’s irrelevant if they know about the document or not. If it hasn’t been served properly it doesn’t matter if the supposed recipient has a dozen copies - they haven’t been served.
    – Dale M
    May 31 at 12:47

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