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Catching up – s.21 and tenants' deposits


A very interesting article by Francis Davey in September’s Legal Action about the Housing Act 2004. The whole piece rewards a read, but two bits caught my eye. We don’t do that many private tenancy possession defences, relatively speaking, so these were new to me.

Where a shorthold assured tenancy started after 6 April 2007, i) the deposit must be held by the landlord in one of the approved tenancy deposit schemes, within 14 days of receiving it and ii) the landlord is to give prescribed information about this to the tenant.

Now, where the landlord fails to do either or both of these, the landlord may not give a HA 1988 s.21 Notice. Any putative notice served is invalid, even if the landlord then later complies with the scheme. The landlord will have to serve a fresh s.21 after complying. Moreover, any s.21 Notice signed at the beginning of the tenancy, or with the tenancy agreement (as very many are) is invalid, as the deposit is not (yet) held in compliance with the scheme and the requisite information not (yet) provided to the tenant.

Sadly this only applies to deposits paid after 6 April, so older tenancies, even where renewed after that date, will not fall under it unless a fresh deposit is paid. [Edit. This is now open to question. It is probable that a new tenancy with a ‘roll-over’ deposit will require the deposit to be placed in a scheme, with the above consequences. A shorthold assured that has become a periodic tenancy – with no new tenancy agreement – won’t be caught.]

Also, where the landlord has failed to comply, the tenant has a claim or counterclaim, with a mandatory award to the tenant of three times the deposit if the landlord has not complied by the hearing. Potentially very useful in a rent arrears possession.

Two things to be added to the list to check with private tenant cases. There is much more in the article…

[For all tenancy deposit case posts click here]

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.


  1. tonyross

    Has the point about a deposit being retained from a previous tenancy, and thus not paid after April 2007 been clarified yet?- in terms of it being excempt from the TDS scheme rules.

    • NL

      Sadly, I have to say that I have heard of County Court judgments that have found both ways – it does fall under the rules and it doesn’t fall under the rules. So the answer is it hasn’t been clarified and currently it is roulette by District Judge.


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