A couple of dates and some information short of a s.21 notice

This is a failed possession and tenancy deposit case now of largely historic interest, though the principles still largely hold true. There is also an interesting point on the period of the tenancy – contractual date v rent date. Our thanks to Legal Action’s ‘Recent Developments in Housing Law’ , Edwards Duthie and Liz Davies for the case.

Lappin v Surace Romford County Court 13 June 2012

Ms Surace was the assured shorthold tenant of Mr Lappin on a 12 month term to 19 April 2010. On the same day – 20 April 2009 – that the tenancy was granted. Mr L served a section 21 notice. Ms Surace paid a deposit of £1,500 which Mr L protected. However, Mr L did not serve the prescribed information required under the then Housing Act 2004 s.213(5) & (6).

Ms S continued as the statutory periodic tenant. Mr L served two more s.21 notices. Each notice expired on the last day of a month (28/02/20111 and 31/10/2011) and there was no saving clause.

Mr L brought possession proceedings, presumably under the accelerated process. Deputy District Judge Oldham made a possession order. No evidence was taken but he found that the deposit was protected and it wasn’t relevant if Ms S knew that it was. He found that rent was due on the first of each month so the statutory periodic tenancy ran to the last day of each month. The s.21 notices were valid.

Ms S appealed. HHJ Wulwik allowed the appeal.

The 20 April 2009 section 21 notice was invalid as the prescribed information had not been served at that date. The DDJ had wholly failed to deal with whether Ms S had been served with the prescribed information and if so when.

There was no great difficulty in requiring a tenant to pay rent on a different date to the periodic date of the tenancy, here rent on the first of the month on a monthly periodic running from 20 of one month to 19 of the next. Salford CC v Garner [2004] EWCA Civ 364, [2004] HLR 35, CA considered. The s.21 notices should have specified the last day of the period of the tenancy, the 19 of a month.

As neither of the s,21 notices did so and there was no saving clause, the notices were invalid. Possession claim dismissed.

Of course, the Localism Act 2011 changed the rules around the period for protection of the deposit, and provision of the prescribed information. It also changed the rules on when a s.21 notice may be served if the deposit and information weren’t dealt with within 30 days of receipt of deposit. However, it remains the case that a s.21 notice is invalid if the prescribed information hasn’t been served on the tenant.

The Circuit Judge took a firm approach to what some regard as the Gordian knot of the correct termination date of a s.21 notice where the period of the tenancy and the rent payment dates do not match. Some, including DJ Hickman in the Law Gazette, don’t think it is so straightforward.

Posted in Assured Shorthold tenancy, Deposits, FLW case note, Housing law - All and tagged , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

29 Comments

  1. Posted 09/08/2012 at 9:26 pm | link to comment

    I think this must be right and is consistent with what the Court of Appeal assumed in Tadema Holdings v Ferguson for succession to assured tenancies (which suffers from the same problems). See my article in the Journal of Housing Law: “Succession, Notices and the Housing Act 1988: An Uncertain Law”.

    • Posted 10/08/2012 at 10:40 am | link to comment

      Thanks Francis. I agree. The period for a statutory periodic simply has to to follow from the end of the fixed term. Frequency of rent payment may be an issue, but not the date the rent is paid per se.

      • Posted 10/08/2012 at 11:39 am | link to comment

        Ah, but what if the fixed term ends in the middle of a period? Eg, rent is payable monthly but fixed term is for 11.5 months? What then?

        Surely (one feels) the new tenancy can’t have monthly periods that start immediately so that the tenant ends up paying for half a month of time extra?

        Now you may say “far-fetched” and you might be right, which is why the succession point is where this question becomes sharpest. People (alas) do not reliably die at the end of rental periods.

        If Old Mr Tenant pays rent on the 1st of the month like clockwork, but sadly deceases on 15th of a month, what are the obligations of young Master or Miss Tenant?

        • Posted 10/08/2012 at 11:54 am | link to comment

          Hmm. Not sure I see the problem. If the rent is paid in advance by Old Mr Tenant, succession is to the same tenancy with its rights and liabilities. Rent liability does not come up till the next rent date.

          I take your point on the 11.5 month term, but isn’t this where the separation of tenancy period and rent date comes in – so you may end up with the rent date in the middle of the period. This continues to the final payment for a couple of weeks. No extra half month paid for.

  2. David
    Posted 10/08/2012 at 2:34 pm | link to comment

    You don’t mention if there was a pro rata payment of rent. If they move in on the 1st Jan and simply agree to pay January’s rent on the 15th and likewise for each month, then I don’t see any problem as the “the periods of the tenancy are the same as those for which rent was last payable” (sec 5 HA88) Clearly the previous quote defines the length of the period but the question has to be does it also define the start and end date?

    If there is a pro rata payment on move in, the the periods for which rent is last paid will change, though this may or may not affect the expiry date depending on the view taken of the first part.

    To avoid the problem, if you take a pro rata payment, why not follow the simple rule of always making the last day of the fixed the last day or a period. You may end up issuing a tenancy for 5 and half or six and a half months, but why not?

    As another alternative, and this is what we do, why not grant a fixed term and a monthly periodic in one agreement and avoid statutory periodics all together?

    Sorry Farnces, neither help with the tenant who dies!

  3. Mick
    Posted 10/08/2012 at 5:09 pm | link to comment

    At the risk of looking like a pure patzer, doesn’t HA1988, section 5(3)(d) sort it out?

    i.e. “The periodic tenancy….is one..under which the periods of the tenancy are the same as those for which rent was last payable under the fixed term tenancy.”

    • Posted 10/08/2012 at 6:20 pm | link to comment

      No, as that refers to length of periods, not dates.

      Eg, monthly tenancy commences first of the month. For whatever reason, rent date is 15 of the month. Rent period is monthly – so a subsequent statutory periodic is monthly, but what are dates? My view – has to be based on start date of tenancy, so from first of the month.

      The alternative, rent payment dates, is frankly chaotic.

    • David
      Posted 10/08/2012 at 6:31 pm | link to comment

      Mick it does not kill the issue as the legislation fails to identify if it talking only about how long the periods are, shall we call it interpretation A, or it refers to the length of the periods and the start and finish dates, interpretation B. The problem in practice is judges give orders both ways and this precise question has not be taken to a court of record, the closest is Church Commissioners V Meya but that decided the length but the start and finish dates was not really the point at issue.

      Hence the need for a cheap and fail safe system.

      • Posted 10/08/2012 at 7:18 pm | link to comment

        I agree it should go to a court of record, but dates based on commencement of tenancy and end of fixed term are the only functional answer. As there is absolutely no requirement for rent payment dates to be at any given point during a period of the tenancy, they are far too much of a moveable feast to be used for dates of a period.

        E.g Tenancy starts 1 Jan, monthly. Rent agreed to be paid on the 15th of each month. So rent for all of January paid 15 January, two weeks in arrears, two weeks in advance. This is entirely possible, even straightforward, and is a monthly period, but using the 14th as the end of a period of the tenancy is clearly nonsensical.

        • David
          Posted 10/08/2012 at 11:36 pm | link to comment

          NL I agree with your post 100%. But what happens if the tenant moves in the 1st, pay 14 days rent to the 15th and then on the 15th pays a months rent. Is there not an argument that the period for which rent was last paid during the fixed would be one month starting on the 15th and ending on the 14th?

          • Posted 11/08/2012 at 1:04 am | link to comment

            I disagree, because the issue is not the dates for which the rent was last paid, but the period – that is the wording of the statute. Rent was last paid monthly, that is all that is required for a monthly statutory periodic. The rent payment date is arguably (and preferably) irrelevant

            Otherwise, on your argument, what happens between the 1st day of the 7th month (assuming a 6 month fixed term) and the 15th? The 6 month term has ended. Your argument would leave a 14 day gap before a statutory periodic arose. Or a 6 week or so first ‘period’ of the statutory periodic. Neither option makes sense or is necessary.

            • David
              Posted 11/08/2012 at 12:34 pm | link to comment

              I don’t disagree, but we still keep getting judgements both ways and hence my suggestion to make sure whatever the judge thinks, you win possession. Ultimately I guess only a court can decide and as with Gladehurst v Hashemi, you can get some very surprising outcomes!

  4. JAC
    Posted 13/08/2012 at 3:24 pm | link to comment

    “However, it remains the case that a s.21 notice is invalid if the prescribed information hasn’t been served on the tenant.”

    Unless, of course, S.215(2A) of the Housing Act 2004 applies:

    “(2A)Subsections (1) and (2) do not apply in a case where— .
    (a)the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or .
    (b)an application to a county court has been made under section 214(1) and has been determined by the court, withdrawn or settled by agreement between the parties”

    • Posted 13/08/2012 at 4:34 pm | link to comment

      JAC

      Of course. And that is new – the deposit has to be returned or and order made under s.214 before a s.21 is valid. Used to be just ‘protect and serve’ even if late.

      It was a quick point, not a full explication of the 2004 Act as amended by Localism Act…

      • David
        Posted 13/08/2012 at 4:53 pm | link to comment

        Does Section 215(2) not allow for valid service of section 21 after the prescribed information has been given, even if late? Though this does not avoid the penalty.

        • Posted 13/08/2012 at 4:56 pm | link to comment

          Not if it is outside the 30 days, no.

          This is the effect of the Localism Act amendments. LL has to protect and serve within 30 days. Otherwise, the only way to serve a s.21 is to return the deposit (with any agreed deductions).

          • David
            Posted 13/08/2012 at 5:03 pm | link to comment

            Interesting, not how I read the implications of the last reference in 215(2)
            (2) Subject to subsection (2A), If section 213(6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213(6)(a) is complied with.

            The previous reference to Section 213(6)(a) in the penalty regime was held to mean that you could do it late. Sub para (a)deals with the action and (b) deals with the timing.

            • Posted 13/08/2012 at 5:11 pm | link to comment

              Apologies David – you are quite right. Protection within 30 days but late service prescribed information can be remedied by late service of the prescribed information. So a s.21 can be served after late service of prescribed information. That will teach me to comment hastily without statute to hand…

            • David
              Posted 13/08/2012 at 8:29 pm | link to comment

              But it does not get you off the penalty!

              Actually, since we wandered onto this subject from Section 21 notices, will just say that till we get a few conclusive court cases going through, I see the adequate of the prescribed information as being rich picking grounds for claiming an invalid section 21. I almost never find prescribed information being used (in the rare cases where it is being used!) that has 100% of the information prescribed in the regulations. The latest abomination is saw last week was to include the wording of the legislation instead of putting in the information required by the legislation! I would not have believed it if I had not seen it. Try looking for post tenancy contact details, often not provided. What about checking who paid the deposit and are they listed on the prescribed information and did they get a copy of the prescribed information. Any of these will unravel a section 21, even if the dates are perfectly clear and correct!

            • Posted 13/08/2012 at 8:36 pm | link to comment

              David, yes the penalty of between 1 and 3 times the deposit remains.

              And I agree on the widespread failings on prescribed information. Got just such a case at the moment. It isn’t that difficult and all the deposit schemes give clear advice and requirements…

  5. Dave , Association of Tenancy Relations Officers
    Posted 15/08/2012 at 5:22 pm | link to comment

    Is there perhaps another perspective to the s215(1)/(2) issue here?
    (1) covers those situations where the ‘initial requirements’ of the scheme were not been complied with within 30 days. I’d have thought that is likely to include the requirement to give the prescribed info.
    Maybe it is still possible to take the view that ‘initial requirements ‘ does include the giving of the info (depending on the particular scheme of course) & retain a purpose for subsection (2).
    Might (2) be left to deal with those situations before the expiry of the 30 days, where the deposit is protected but the prescribed info has not yet been given?
    Also, the new s215 (1) (b) includes the 30 day rule but the old (1) (b) did not, which might suggest that the non-compliance rectification provided by (2A) was meant to apply to all cases where full compliance hadn’t occurred within 30 days.

    • Posted 15/08/2012 at 5:36 pm | link to comment

      Dave

      The issue is new 215(2). Where s.213(6) not complied with, no valid s.21 until s.213(6)(a) has been complied with – 213(6)(a) is just the provision of info. 231(6)(b) is the ‘within 30 days of date deposit received’. So no time limit on remedial compliance with 213(6)(a)

      215(1)(b) is where s.213(3) not complied with – which is the ‘initial requirements of an authorised scheme’. But there is existing case law on ‘initial requirements of the scheme’ not including the statutory deadline for when it was to be paid in by – Dravott v Hannells Letting. That would still seem to apply.

      215(2) cannot be read to apply to the period within 30 days when deposit protected but info not served, because it is where 213(6) is not complied with – which, via 213(6)(b) is to rpovide info within 30 days of receipt of deposit

      So, in short. No, I don’t think so.

      • Dave , Association of Tenancy Relations Officers
        Posted 15/08/2012 at 5:54 pm | link to comment

        But wasn’t Draycott about inferring the stat deadline into s213 (4), via the Scheme’s particular time requirements, which was understandably rejected, where as the new s215 (1)(b) explicitly includes the stat deadline, via s213(3). Take the point about s213(6)though.

        • Posted 15/08/2012 at 7:25 pm | link to comment

          Hm. Take your point on s.213(3) and Draycott. But I still think you have a significant uphill battle.

          First, whether ‘initial requirements’ of the scheme can be clearly construed (in each scheme) to include service of the prescribed information on the tenant within 30 days of the deposit being received

          Second, why this interpretation can and should over-ride and render otiose the very clear provision in s.213(6) and s.215(2), which effectively provides for service of the prescribed info late where (and only where) the deposit was actually protected in the scheme within 30 days – or rather at least to escape the s.21 penanlty in those circumstances, though not a claim.

          Frankly, I don’t fancy your chances. But then stranger things have happened.

          • Dave , Association of Tenancy Relations Officers
            Posted 16/08/2012 at 9:33 am | link to comment

            Many thanks & much appreciate your views and comments. As much as anything, I’m disappointed that the clarification job intended by s184 is less than entirely successful.

            • Posted 16/08/2012 at 9:46 am | link to comment

              Dave

              Looking further s.213(4) defines ‘initial requirements’ as’such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a deposit’. Arguably service of prescribed information isn’t ‘imposed by the scheme’ but by statute, so falls outside ‘initial requirements’ and s.213(3).

  6. David
    Posted 16/08/2012 at 11:58 am | link to comment

    Dave and NL.

    In Tiensia v Vision Enterprises Ltd (t/a Universal Estates) [2010] EWCA Civ 1224 (11 November 2010) did they not say that the initial requirements of a scheme could only be a “what” not a “when”?

    I can’t see why this part of this judgement should not survive the 2012 changes.

    If this was true then the initial requirements of the scheme could not be used to impose the time limited obligation.

    • Posted 16/08/2012 at 2:15 pm | link to comment

      But the time obligation is added to the ‘intial requirements’ by the new s.213(3). In any event, what Dave was after, I think, was the ‘initial requirements’ to inluce the serving of the prescribed information. That way a failure to do so would fall under s.215(1)(b) and only be remediable by return of the deposit or court order under s.215(2A). This would make s.215(2) redundant. I don’t think that works, for the reasons in my comments.

  7. David
    Posted 16/08/2012 at 2:57 pm | link to comment

    I agree, Sec 213(4) clearly says the initial requirements are “requirements imposed by the scheme” and the prescribed information is not prescribed by the scheme but by the law. Indeed 213(10) says “prescribed” means prescribed by an order made by the appropriate national authority, therefore if the initial requirements of a scheme did tell you to give information is would fail the prescribed definition.

    In Draycott, para 28 and 29 state:

    28. I remind myself of the definition in s.213(4): ” “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit”.

    29. In my judgment, the requirement that there be payment into the Scheme is the initial requirement of the Scheme, and not the requirement that that be done within 14 days. The time limit of 14 days is a requirement of s.213(3). That requirement is repeated in the scheme, but so are a number of other provisions of the 2004 Act. The fact that the time limit is repeated in the terms of the Scheme does not make it an initial requirement of the Scheme.

    Clearly writing something that is in the law in the scheme does not make it an “initial requirement of the scheme”.

2 Trackbacks

  1. [...] Being Debated – What are the Periods of a Statutory Periodic Tenancy?Thanks to the nearlylegal blog for this one (who in turn offer thanks to Legal Action’s ‘Recent Developments in Housing Law’ [...]

  2. [...] through the August issue of Legal Action Magazine I came across this little case (also reported on Nearly Legal) which supports two of the things I have been saying on this [...]

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