The Tenant (Super)Strikes Back

As we noted when writing up Superstrike Ltd v Rodrigues [2013] EWCA Civ 669 (see our note, here), the case left open an interesting – and important – question. If a fixed term has expired and a statutory periodic tenancy arisen, do the requirements in s.213, Housing Act 2004 (deal with the deposit in accordance with an authorised scheme; comply with any initial requirements of the scheme; provide the prescribed information in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007) arise again? If they do, does non-compliance render s.21 notices invalid (s.215)and/or expose landlords to the statutory damages (s.214).

Well, we have an answer in a recent county court case: Gardner v McCusker 3BM70525, Birmingham County Court. The facts are fairly straight-forward and, I suspect, common. Mr & Mrs Gardner let a property to Ms McCusker for a fixed term on six months in November 2009. There was a deposit of £600 which was protected in the MyDeposits scheme in January 2010. There were various attempts to provide the prescribed information, including in November 2009, January 2010, May 2012 and September 2012. In May 2010, the fixed term tenancy expired and a statutory periodic tenancy arose. In March 2013, a notice under s.21, Housing Act 1988 was served. Possessession proceedings were issued and were met with a defence and counterclaim contending that there had been, inter alia, no service of the prescribed information in respect of the statutory periodic tenancy.

The argument for the tenant went like this:

(a) on the coming to the end of the fixed term tenancy, a new tenancy arose by operation of law (s.5, Housing At 1988; Superstrike);

(b) in respect of that new tenancy, the deposit which had been paid in connection with the fixed term tenancy was deemed to have been re-paid, but now in respect of the new tenancy (Superstrike);

(c) it followed that there had been a “receipt” of a deposit by the landlord in May 2010, when that new tenancy arose;

(d) upon receipt, the obligations in s.213 arose;

(e) those obligations included a requirement to serve the prescribed information;

(f) that had never been done because (i) none of the various attempts at compliance met the requirements of the Prescribed Information order; and, (ii) even if they did, they all purported to relate to the (now expired) fixed term tenancy (i.e. all claimed the tenancy started in November 2009 and all referred to a deposit being paid on that date, etc);

(g) the result of this was that the s.21 notice was invalid and the landlord was liable to pay damages.


The landlord argued:

(a) just as the deposit was deemed to “roll over” into the new tenancy, so the prescribed information which was provided under the old tenancy was deemed to “roll over” into the new tenancy;

(b) the prescribed information which had been provided (on at least one of the four occasions) was valid;

(c) Superstrike could be distinguished because, in that case, the landlord had never even attempted to comply with the requirements of s.213 either under the fixed term (which pre-dated the coming into force of the relevant parts of the Housing Act 2004) or the statutory periodic.


The court found for the tenant. The logic of Superstrike was not confined to cases where the fixed term tenancy came into being before the 2004 Act came into force. The ratio of Superstrike was that the statutory periodic tenancy was a new tenancy under which a deposit was deemed to have been paid. That was equally applicable to the present case. It followed that all the requirements in s.213 arose afresh in May 2010, i.e. when the statutory periodic tenancy arose.

Those requirements included a requirement to serve the prescribed information. That had not been done in the present case as each of the attempts to comply were, factually, inadequate (for reasons which are, I suspect, fact-specific). It followed that the prescribed information had not been given in respect of the statutory periodic tenancy and the s.21 notice was invalid. The court ordered the deposit to be returned to the tenant and damages of 2 times the value of the deposit to be paid (so £1,800 in all). The claimants were to pay the costs of the claim and counterclaim (to be set-off against some rent-arrears and outstanding costs orders from other – earlier – proceedings).

All in all, ouch for the landlords and encouragement for tenants (and their lawyers) to take this point. Interestingly, the decision in this case broadly accords with the position taken by the various tenancy deposit schemes (see here) who take the view that it is prudent to re-serve all the prescribed information when a statutory periodic tenancy arises.


With thanks to Justin Bates of Arden Chambers, counsel for the tenant, for the note of hearing.


Posted in Assured Shorthold tenancy, Deposits, Housing law - All and tagged , .

About J

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.


  1. Well, Superstrike had already clarified that the initial requirements had to be complied with at the creation of every new tenancy when it indeed clarified the interpretation of “a deposit received in relation with an AST”, which was really what the case was all about.

    Considering that the Act’s wording re. service of PI is essentially identical this decision is not a shocker.

    • Oh entirely agreed that it isn’t that surprising to a lawyer, but I rather suspect it’ll come as something of an unwelcome surprise to many landlords. It may be a short-lived issue; we understand that the Government will be legislating on this point shortly.

  2. I’m confused by point (f)(ii) wherte it says the PI purported to relate to the fixed term tenancy.

    There is nothing in the Housing (Tenancy Deposits) (Prescribed Information) Order
    2007 that requires the identification of a tenancy, only of the parties and the properties.

  3. It’s reg.2(1)(g) of the PI regs – the details have to be “in connection with the tenancy in respect of which the deposit has been paid”. The tenancy “in respect of which” the deposit was paid is the fixed term tenancy until it expires, and then becomes the statutory period tenancy. The certificate provided by the landlords in this case (the standard form MyDeposits one) has a space for a date of tenancy commencement and date of deposit received and those dates have to change once the tenancy changes from fixed to stat.periodic.

    Or so the Judge held :-)

    • Does the same apply to deposits protected with DPS? Their PI template doesn’t include a space for a date of tenancy commencement or date of deposit received. So does this mean that it is acceptable to re-issue the same PI at the start of the periodic term that was served at the start of the fixed term?

    • Sorry – (1) we don’t give advice via the blog; and, (2) as you’re a commercial organisation, you’d need to pay us to tell you the answer :-)

  4. I suspect the sensible approach to Super Strike is to align a balance between competing rights of landlords and tenants, in that where as a fixed term tenancy becomes periodic thereafter with a holding deposit becoming rolled over, it follows that the prescribed information requirement by logic should also roll over unless there are changes.

    A simple remedy might be for landlords to add an addendum to the initial prescribed information making clear that at the end of the fixed term upon becoming periodic the deposit and prescribed information would roll over- saves repetition of serving same info for no purpose.

    • That wouldn’t work. Re-serving is a statutory requirement so can’t be contracted out of. It would, however, be a simple amend (one word perhaps) to the statute.

  5. Can I serve the prescribes deposit paperwork as scanned copies by email attachment, or do they have to be served as documents printed on paper?

    Last month I had a tenancy go from Statutory to Periodic and I arranged for the old deposit to be paid to me from the DPS Custodial Scheme and I then re-deposited it in the same scheme. It seemed prudent, but is it necessary?

    • Hi, we can’t offer advice on specific individual situations, I’m afraid. Not only are we not insured for it, it what we get paid for in the day job.

    • OK. As a generalised question of relevancy to many landlords, can the prescribed deposit paperwork be served as scanned copies by email attachment, or do they have to be served as documents printed on paper?

      When a tenancy goes from Statutory to Periodic, It seems prudent to recover the deposit from a custodial scheme and then re-deposit it, but is it really necessary?

    • You need to talk to DPS about DPS requirements. As for the rest, we don’t offer legal advice through the site, whether to you individually or ‘many landlords’. It actually says this on our ‘about’ page.

  6. what ever happened to justice
    families try to do the right thing and obey the law when they are letting out property and then are betrayed by a crooked and unjust legal system
    crooks and predatory lawyers are given a licence by the government to bankrupt and destroy ordinary hardworking families
    does’nt it make you proud to be british

    • Anthony, nothing crooked or unjust about it. Until the Localism Act amendments, the Courts had consistently found against tenants – no claims after the end of the tenancy, late protection up to the day of hearing meant no penalty, and so on. The Courts go on the exact wording of the statute. I’d agree that tenancy deposit rules have been a mess all round, first unduly favouring landlords, then arguably unduly favouring tenants in a super strike case. But that is the fault of the people who worded and the parliament that passed the legislation.

      Mind you, it should have been clear to every landlord from April 2007 that they had to protect the deposit within the time limits. If they didn’t, they really don’t have anyone else to blame but themselves.

    • “what ever happened to justice
      families try to do the right thing and obey the law when they are letting out property and then are betrayed by a crooked and unjust legal system
      crooks and predatory lawyers are given a licence by the government to bankrupt and destroy ordinary hardworking families
      does’nt it make you proud to be british”

      This is Justice, it is the Law, a law that is there to protect BOTH parties, particularly crooked Landlords who think they have a God given right to grab deposits (usually for fair wear and tear). Letting out property is a BUSINESS do not blame the LAW or TENANTS because you have not been professional. BTW “does’nt” is spelt “doesn’t” replacing the missing letter and please if you want to be proud please a capital B in British!

      Seriously, for a landlord this is a way to make money (not just from the rent but the increase in the value of the property) but for the tenant it is their home. Landlords have enhanced protection under Section 8 if people do not pay, if you want to move back in or if you need to sell your property.

      This only applies to S21 which is just used to kick out a tenant on the whim of a Landlord usually because they can’t put up the rent to the existing tenant but reckon they can if they bring in new tenants.

  7. A periodic tenancy runs from term to term, based upon the payment of rent – ie, if the rent is paid monthly, you have a monthly tenancy, that ends and re-starts afresh each month. So you have a serious of continues short term period tenancies.

    So based on this logic, if each periodic monthly tenancy ends and re-starts as a new tenancy every month, a landlord would be required to send the prescribed information every month…

    That is how I see the literal interpretation of the law, which if and when ever determined, shows what a mess the rules are.

    Re-drafting needs to come quickly.

    • We’ve had this suggested before about periodics. But it isn’t so. A periodic tenancy runs until it is determined – needed by notice from landlord or tenant. It is a tenancy from month to month (or week to week) not of ‘a month’. It does not end if the rent for the next month is not paid, and the obligation to pay the rent continues too.

      The difference to a statutory periodic coming into being is that a stat periodic is defined by the statute as a new tenancy.

  8. When I had a year’s tenancy coming to an end I telephoned the DPS to check what I should do. (Tenant staying put).

    I was told to photocopy the full information as issued to the tenant in the first instance, but when I asked if I should withdraw the deposit and replace it I was told that would not be necessary.
    The tenant thought it all a bit mad, but signed for receipt of the paperwork.

    • Hmm. I don’t think there is any problem with the deposit staying in the scheme – it isn’t necessary for it to be moved to be ‘received’ for the new tenancy.

  9. I can’t imagine that actually withdrawing the money is necessary, Superstrike suggested that there was a ‘virtual’ handover rather than an actual one ever taking place. But if this is to be taken as true and the periodic tenancy requires new prescribed information to be sent, and for the deposit certificate to be changed to show and end date of ‘periodic’ etc, then should the deposit certificate not reflect the start date of the periodic tenancy rather than the start date of the fixed term?

    • The Prescribed Info Order doesn’t actually require the Info to refer to the specific tenancy, or tenancy start date..

      However, if the info served did refer to the start date and date deposit received, then clearly that information would have to be right.

  10. Pingback: Deposit Prescribed Information At Statutory Periodic Tenancy And Superstrike | GRL Landlord Association

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