Tenancy deposit – late compliance again

Da Costa v Pinter Bromley County Court April 2008

With thanks to the November Legal Action housing updates. This was a tenancy deposit and 3 x deposit penalty claim. The rent was £1,950 a month. The tenancy agreement also stated ‘Payment required in advance of £4,200’. The invoice from the landlords agents said that of this, £2,250 was ‘a deposit’.

At the end of the tenancy, the deposit was requested by the tenant, but not returned. There was also no trace that the deposit had been protected in one of the schemes. The tenant brought a claim for deposit and the penalty. After the issue of proceedings, but before the hearing, the deposit was put into one of the schemes and details provided to the tenant.

DJ Burn ordered return of the deposit and the 3 x penalty. The DJ stated:

The purpose of the Act is to try to ensure that landlords secure tenancy deposits in a recognised deposit scheme at the start of the tenancy, so that the deposit can be returned to tenants quickly when the tenancy ends, and that disputes about the deposit can be resolved under the schemes’ procedures without the need for court proceedings.

Landlords who describe a deposit as something else, who do not secure it promptly in a deposit scheme as required by the Act, then fail to return the deposit when the tenant leaves (especially if this is without good cause, thereby forcing the tenant to start court proceedings to recover the money) but who then at the last minute after the tenant issues proceedings, pay the deposit into a scheme, are clearly flouting the spirit of the legislation and, on my interpretation, the letter also.

If the s213 and s214 remedies are not applied in a case such as the instant one, the Act would be rendered virtually toothless when landlords flout its provisions.

We are, of course, still in the land of the County Court lottery on the late compliance issue. None of these cases are binding on other courts. Harvey v Bamforth went one way and other cases, including this one, have gone the other. There does seem to be a distinct view on the spirit and purpose of the legislation emerging, through which the, to put it charitably, ambiguities of the Housing Act 2004 are viewed. But until we have a higher court judgment on the issue, there is no certainty.

[For all tenancy deposit case posts click here]

About Giles Peaker

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

23 Comments

  1. Does anyone know if there are any cases likely to go to the Court of Appeal on the tenancy deposit legislation, and clear up all this ambiguity and confusion? As things are at present it is difficult to advise anyone.

    • I don’t know of any and would also love to hear. I know of one county court case that was given permission for a leapfrog appeal direct to the Court of Appeal – on the issues of both late compliance and ‘renewal of tenancy’ where the deposit was physically given to the landlord for a tenancy that started before April 2007, but there was a subsequent renewal. The county court found against the landlord on both issues, but recognised the importance of clarification by the Court of Appeal. Sadly, I heard nothing more – funding, I presume.

    • I understand that in Universal Estates v Tiensia permission to appeal was granted by Lloyd LJ on 23 September 2009. The appeal is listed as a floater on 31st March/1st April 2010 before Arden, Maurice Kay and Patten LJJs.

      In the mean time I am posting a summary of all the country ocurt decision of which I am aware on my web site http://www.nicmadge.co.uk. Follow the links ot “housing”.

      Nic Madge

  2. Also – has anyone heard whether cases are in practice being assigned to multi track as suggested by CPR? (even when less than £5k)

    As the whole risk of costs makes it much more difficult if it is being assigned to multi track

    Cait

    • Cait, I’ve certainly heard of cases being allocated to the multi-track. Of course, while there is the costs risk, it also makes being represented more plausible.

    • Does it?

      I was hoping it would – but unless there is an issue around S21 I think it fails the sufficient benefit test for full certification?

      So I would be interested to know whether any solicitors are actually running these cases, under public funding, when it is *simply* about retrieval of the deposit (and the fine)

      Cait
      PS if no one *can* get public funding – then it would seem like a great opportunity for ‘no win no fee’ cases

    • It was CFAs I was thinking of, certainly. The trouble is, until there is some kind of certainty over some of the issues, like late compliance, it is a very high risk strategy. I haven’t run any. All the stories of acting for the tenant I’ve heard from others have been Defence and Counterclaim to possession of one ground or another.

    • Cait – is there general guidance that TDS’s are allocated to MT or just the usual points about complexity etc? Can’t find anything in CPR 56 or 8.

    • In the usual amusing drafting of the CPR they are “treated” as having been allocated to the multi-track (CPR 8.9(c)). Unless of course a rule or practice direction provides otherwise (but when isn’t that true)?

    • thanks – I thought I saw somewhere that a DJ should consider allocation when a Part 8 claim is disputed – but can’t find it anywhere in rules now.

  3. The appeal of a Part 8 claim does not go to the Court of Appeal in the first instance but to the High Court so it will be necessary to look there to begin with. It is a shame that the reports do not make clear precisely what letter of the legislation the judge deemed the landlord to be flouting.

  4. Do you know I am getting rather hacked off with all the divergent county court judgements! I would have thought that looking at the Law Commission’s report & Second Reading of the Housing Bill (Act 2004) would beuseful in bringing the courts to a logical and consistant conclusion on tenancy deposits and s214(4) matters. Both Hansard and Law Commission reports are admissable due to the two House of Lords ( now Supreme Court) judgements :
    Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2
    Lord Reid
    “….I think that we can take this(Law Commission) Report as accurately stating the ‘mischief ‘
    and the law as it was then understood to be, and therefore we are fully
    entitled to look at those parts of the Report which deal with those matters…..It has always been said to be important to consider the ” mischief”
    which the Act was apparently intended to remedy. The word ” mischief ”
    is traditional. I would expand it in this way. In addition to reading the
    Act you look at the facts presumed to be known to Parliament when the
    Bill which became the Act in question was before it, and you consider
    whether there is disclosed some unsatisfactory state of affairs which Parlia-
    ment can properly be supposed to have intended to remedy by the Act.
    There is a presumption which can be stated in various ways. One is that
    in the absence of any clear indication to the contrary Parliament can be
    presumed not to have altered the common law farther than was necessary
    to remedy the “mischief”. Of course it may and quite often does go
    farther. But the principle is that it the enactment is ambiguous, that meaning
    which relates the scope of the Act to the mischief should be taken rather
    than a different or wider meaning which the contemporary situation did not
    call for. “

    Pepper (Inspector of Taxes) v Hart [1992] UKHL 3
    LORD BROWNE-WILKINSON
    “….In my judgement…reference to Parliamentary material should be
    permitted as an aid to the construction of legislation which is
    ambiguous or obscure or the literal meaning of which leads to an
    absurdity. Even in such cases references in court to Parliamentary
    material should only be permitted where such material clearly
    discloses the mischief aimed at or the legislative intention lying
    behind the ambiguous or obscure words….Take the normal Law Commission Report which
    analyses the problem and then annexes a draft Bill to remedy it.
    It is now permissible to look at the report to find the mischief
    and at the draft Bill to see that a provision in the draft was not
    included in the legislation enacted …..”

    • Nick, we know the precedents you mention well (you are talking to a bunch of lawyers here) but that doesn’t necessarily help. Firstly, it has to be in reference to a specifically ambiguous phrasing. Most of the county courts have apparently found it isn’t ambiguous – but have decided in different directions. Secondly, until we have a higher court judgment, county courts are not bound by any other county court decision. Until it reaches the High Court or Court of Appeal, citing the extra statutory material is in no way decisive for another court.

  5. What about a self contained annexe -is the landlord expected to pay the deposit into a scheme in this situation too? If the annexe is attached to the house and no contract is signed but an intention to create a AST was always there? I am in this situation where my landlord gave me a very onerous agreement but was then too busy to discuss it – in the end it was never signed and I gave notice to leave 4 months in because she was a nightmare landlord who had no respect for privacy and entered the annexe without my permission. I am still there now after serving the notice until I find another place (which I have I leave next week) but she has now moved another tenant in to share with me in the meantime.I think she should have secured my deposit in a scheme because it was effectively an AST as she was not a resident landlord- what do you think?

    • Marie

      We can’t give advice on individual’s cases, I’m afraid. However, there is enough in what you say for me to suggest it would be a very good idea for you to find a specialist housing advisor (CAB, Law Centre or solicitor) as soon as possible.

    • I have spoken to shelter since and they said I could bring a claim but that the landlord could just counterclaim that they were a resident landlord in which case it would not be an AST and the deposit would not need to be put in a scheme – it would be up to the judge to decide on a matter of fact and degree. If there is a chance that I could lose then I will leave it as I really don’t need the stress. This was my first time renting and the main thing is I have learnt from the experience. Also she deducted my last month’s rent from the deposit and £14 for radiator paint because I stained an already old and dirty radiator (oh yes and for a paintbrush and white spirit too none of which she has provided receipts for) – so really I haven’t lost out too much as she will be returning the remainder. Thanks

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