Two weeks, three months, whatever. TDS in the High Court.

Draycott & Draycott -v- Hannells Letting Limited [2010] EWHC 217 (QB)

This is the first High Court judgment on the tenancy deposit scheme element of the Housing Act 2004 and thus the first that is binding on all lower (County) Courts. This is therefore a significant decision.

This was an appeal by Hannells from a Circuit Judge decision. The Draycotts had entered into a 12 month AST with Derby Build Ltd (the landlords) on 28 February 2008. A deposit of £2,700 was paid to the agents, Hannells, who, according to the tenancy agreement, were to hold the deposit as stakeholder. The deposit was credited on 4 March 2008. The deposit was not registered with the DPS until 19 May 2008 and the Draycotts informed of the details on 21 May 2008. On 27 November 2008, the Draycotts brought a claim under s.214 Housing Act 2004 on the basis that the deposit had not being registered and information given within 14 days of it being received. The claim was brought against the agents.

At first instance, the Circuit Judge held that the claim could be brought against the agents on the basis that the definition in s.212(9) ‘references to a landlord include references to a person or persons acting on his or their behalf in relation to the tenancies’ [my paraphrase] applied to s.214(4), the requirement to pay three times the deposit. The Circuit Judge also held that s.213 meant that the deposit had ‘to be dealt with in accordance with an authorised scheme from the time it was first received’ and s.213(3) did impose a 14 day requirement. Accordingly he awarded the 3x penalty, observing that to do otherwise would permit an unscrupulous landlord to simply avoid a scheme until a claim was made, then comply, ‘driving a coach and horses’ through the Act.

On appeal, there were two main issues:

i) Whether an agent can be pursued for the 3 x deposit penalty under s214 due to the deposit being unregistered; and

ii) Whether the penalties under s214 take effect after a failure to comply with the 14 days requirement or only if the deposit is unregistered when the claim comes to court.

Mr Justice Tugendhat held:

On i) the words of s.212(9) are clear and unambiguous, with no need to consider extraneous material. The words ‘the person who appears to the court to be holding the deposit’ in s.214(3)(a) are not otiose, but rather limit the scope of a possible order to the person holding the deposit and exclude anyone else who might be defined as falling under the term ‘landlord’. S.214(4) has no such limitation, it is penal and the penalty is imposed on the person who is responsible for the failure to comply with s.213 and protect the deposit. Where the failure was the agent’s, there was no reason why they should not have a s.214(4) claim brought against them.

On ii) while a failure to pay a deposit into a scheme is certainly a breach of s.213(4), it cannot simply be equated with the requirement to protect the deposit within 14 days of receipt.

“The requirement that there be payment into the Scheme is the initial requirement of the the Scheme, and not the requirement that it be done within 14 days. The time limit of 14 days is a requirement of s.213(3)”.

For s.214 to bite, the requirement is that ‘the initial requirements of the Scheme’ have not been complied with, so the breach is governed by s.213(4), which states

For the purposes of this section “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.

So ‘initial requirements’ do not necessarily include the 14 days unless required by the Scheme itself, and the DPS scheme, at this time, did not impose a 14 day requirement, although it did state that the landlord or agent was responsible for ensuring that the deposit was submitted for protection within 14 days of receipt.

Once a deposit had been lodged with the Scheme, and, on the basis above, the initial requirements complied with at least before the hearing of a claim, the Court could not make an order under s.214(4).

S.214(2)(a) states that an order under s.214(3) and (4) is triggered if ‘the court is satisfied that [the initial] requirements [of an authorised scheme] have not … been complied with in relation to the deposit’. Accordingly, if the deposit can be and is protected in accordance with the initial requirements at any point before the hearing of the claim, the claim under s.214(4) must fail, although if the deposit was unprotected at issue of the claim the landlord faces an order for those costs. [para 51]

To the objection that this leaves the unscrupulous landlord free of penalty, there is the counter view that s.215 is untouched. It is not possible for the landlord to serve a valid s.21 Notice until the deposit is protected.

Appeal allowed on this issue.

Where does this leave us?

Firstly, the agent point is quite clear and I’d say, entirely correct in terms of the meaning of s.212(9). Agents are potentially liable if they are the ones handling the deposit and who failed to put it in a scheme.

The late compliance point is not as straightforward as it looks at first reading. The finding here is that there is no requirement within the terms of the Housing Act 2004 itself that the deposit must be protected within 14 days of receipt that will incur the 3 x penalty. Thus, in terms of the Housing Act 2004 by itself, late compliance up to the very doors of court is possible and will allow the landlord to avoid a 3 x deposit penalty.

But does this mean that landlords (and agents) are home free on the late compliance point? No. While there is no 14 day requirement in the Act, the requirement is to comply with the initial requirements of an authorised scheme. Failure to do that may well trigger the 3 x penalty. The question then is what are the initial requirements of the scheme?

The initial requirements of the specific scheme in this case – the DPS scheme in March to May 2008 – did not include a requirement for submission within 14 days of receipt by the landlord/agent. But what if the specific scheme that was used did include such a requirement at the time the deposit was received? On the analysis here, s.214(4) might be be triggered by any delay over 14 days. Or is it the requirements in force for a scheme when the deposit is submitted to it? After all, when a deposit is not being paid into a scheme, which of the schemes’ requirements are potentially not being complied with?

Compliance with a scheme’s requirements is one of the issues at stake in the Tiensia case [reports here and here] which is due to be heard in the Court of Appeal next month.

We may have had clarity on one point, only to open up a new layer of complexity. What were the specific initial requirements of the authorised scheme at the time? And is that the time the deposit was received or submitted to the scheme? And if received, then the requirements of which scheme?

In the meantime, this has made s.214(4) 3 x deposit claims very difficult for tenants – if late compliance is enough to defeat the claim under the Housing Act 2004 – and, for the moment at least, any legal representation for the claimant tenant will have to be paid in full, because a CFA on a claim that can be defeated at the landlord’s whim is a non-starter.

By the way, Painsmiths acted for the appellant and we have had good reason to link to Painsmith’s blog often in the past.

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 , .

29 Comments

  1. I hope they are appealing this – it as good as renders Section 214(4) worthless. The quoted comments of the circuit judge are spot on.

    Tugendhat J seems to have not appreciated that the order for a sum of money is not a sanction but in essence a form of statutory exemplary damages.

    For the tenant who wishes to leave , say due to disrepair their deposit might never be protected. Indeed , it is the unscrupulous landlord who manages their properties in a way that tenants do not wish to stay that will benefit the most from this decision.

  2. I suppose I may as well declare myself at this stage and surrender anonymity. I actually work for PainSmith.

    I think JS is missing the point. A tenant who leaves early would actually have the remedy of 3x the deposit available to him if the deposit had not been protected previously. The Act itself does not impose a penalty for late protection (at least in my view) and so it comes down to whether individual schemes do.

    It is not correct to say that the penalty is a form of statutory exemplary damages. The government was not clear in Parliament what it was for but they did intimate it was there to encourage tenants to police the system themselves. However, it was not the intention to allow tenants to try to catch out landlords who had made errors but who did protect the deposit. A balance must be struck between the two positions.

    There are also sound reasons why the 14 day parameter should not be a fixed penalty. There are situations where a tenancy falls outside the Housing Act and then slides into it during the term. In those cases the deposit might very well be protected outside the 14 day time limit. Not due to maliciousness or ignorance but due to the fact that it was taken at a point when protection was not required. If the law was cast as the HHJ Lea and JS suggest that would allow the tenant to claim a wholly inappropriate and unnecessary penalty.

    On balance, I think the decision was the right one in all respects.

  3. With the greatest respect to Mr Smith I understand entirely the point . The point as see by him and his client is that the three times the deposit award is far too harsh for late as distinct from non-compliance .

    The problem with his approach and that of Tugendhat J is that in seeking to ameliorate the harshness of the statute to landlords they have indeed as HHJ Lea described it ” driven a coach and horses through it ”

    1 The purpose of the law was to protect tenancy deposits, for tenants to be aware of that protection and their rights ( by the information provision). The three times penalty provision was to seek to ensure that landlords complied with the statute . The S215 sanction was to prevent landlords responding to such claims by eviction – retaliatory eviction has always been one of the major underlying problems of a regime where the tenant has no security of tenure . Thus a twin track approach was adopted . Without the former , the landlord of a property who so long as the rent is paid is likely to allow the tenant to remain e.g a harder to let property has no sanction enforcing non-compliance with the scheme or the statute

    In essence, the judgment has negated entirely the effect of Parliament’s requirements for protection and information as any non-compliant landlord will be able to defeat a claim by late compliance . It is all very well to state that this is not a problem as a tenant will be able to force late compliance but it is of little protection to a tenant whose landlord is bankrupt or has the property repossessed or to the tenant who does not know of their rights to enforce due to failure to comply with the information provisions.

    I accept that the sanctions on a landlord who overlooks the requirements or is a only a few days late are harsh but that is a matter for Parliament to reconsider not for judges.

    • First I should apologise to JS, my words were poorly chosen. Inevitably my view on this matter, not leas due to my involvement with the case is going to be different from my colleagues and, to some extent, my response here should also be seen as a response to Dave’s excellent post.

      However, while I accept that the aim of the legislation was to protect tenancy deposits we are trapped by the fact that it was founded on a degree of misconception. The Government had a view, prior to the legislation being put forward, that all landlords were stealing tenant’s deposits. The evidence for this was, at best, thin. The Government then drafted a piece of legislation that had a number of serious loopholes, some of which have been exposed by this decision. I agree that there is a need to make sure that landlords get on and protect deposits but I do not accept that the right way to deal with this was to impose a fairly draconian penalty after 14 days without any discretion for the Court in terms of awarding it.

      Either way it is my view that the penalty, rightly or wrongly, cannot be imposed by way of the statute, even though this may well ‘drive a coach and horses through the act’. To repeat the argument made by others (albeit the other way round) it is not for the Courts to correct Parliament’s errors.

      This leaves us with the initial requirements point. I must admit to some sneaking concerns with Mr Justice Tugndhat’s reasoning in regard to this issue and the rather unusual way he read a line from the DPS terms of business, if for no other reason than because it is an obvious line for appeal. I will point out here that the TDS scheme has had an explicit statement of its initial requirements since December 2008 that deals with the 14 day issue and that this change was made following advice. The fact that the other schemes have not done the same is a matter for them. However, I do feel that there must be a route for landlords who have registered late because of a change of status of their tenancy, rather than through ignorance, to clearly be able to protect a deposit with a certainty that they will not then be penalised. On the reading of the DPS terms of business advocated by JS and others this is not possible. This is not an issue for Parliament but entirely one for the schemes themselves as it falls to them to set the wording of their terms of business. Therefore, if those schemes have not developed proper wording then I think it is an issue that the Courts should interfere with in order to produce a reading of them that balances the interests of both sides. I accept that the current reading may have moved the pendulum a little far in the landlords favour but I would submit that it has been a little too far the other way (on this issue only) thus far.

  4. I agree with JS. I don’t think there should be any excuse for landlord’s to overlook anything when renting a propert and that includes putting a deposit into a scheme and providing the prescribed info within 14 days.

    In my experience with many Landlords if they think they can get away with something then they will and in this case the threat of the 3* penalty was the only thing making them put the deposit in a scheme.

    Tenants shouldn’t have to go to Court just to get the LL to do the right thing and then only have the reward of a costs order.

  5. While the interpretation of the statute could perhaps have gone either way, I am concerned by Tugendhat J’s assessment that on the balance of ‘inconvenience’ it is preferable that the tenant has to police compliance with the scheme, even to the extent of bringing proceedings, which inevitably mean that the tenant incurs time and costs beyond those that would be recovered, than that the landlord face a ‘draconian’ penalty for being a day late.

    While this is, as we all know, very badly drafted statute, leaving this open as a viable interpretation, it strikes me as both unjust and impractical that the operation of the scheme should effectively rely on the tenant’s willingness to bring almost inevitably abortive proceedings, not to mention the waste of court time and public funds involved.

    Beyond that, to be left in a position where it is down to the details of the specific scheme adds a further level of inequity for the tenant. There is no uniform protection for tenants and the choice of scheme is for the landlord, leaving that selection open to exploitation by the unscrupulous landlord. This is a ridiculous situation.

  6. there are 3 possible interpretations
    1 14 days
    2 issue
    3 hearing

    This was a case where everything was completed before issue — see para 12.

    Therefore in relation to cases where landlords do not comply by issue Tugendhat J is obiter. He did not give any form of reasoned decision as between issue and hearing and it would appear there were no arguments that way.

    The principles contained Beavis v Carmen [1920] WN 159 and Bird v Hildage 1947 2 All ER 7 shew that similar wording in the rent & mortgage interest restriction acts [the act of 1933 sched 1 para (a)] in recovery for rent arrears crystallises at date of issue and do not refer to the date of hearing even if all the arrears are by then cleared.

    If 14 days are not the date then issue would not take away incentive for landlord to get on and comply and would not make issuing seem futile to tenant.

    • Niki, I agree that this point is treated somewhat cavalierly, indeed unclearly, in this case – see paras 51 & 54 for instance. The thinking seems to be up to issue – no sanction, after issue but before hearing – costs, but no 3x penalty.

      I agree that there is an arguable case for issue being the deadline – although that would face the ‘also’ in 214(4) argument, but we’ll probably have to wait for another case on that point. As it stands, landlords’ representatives are going to be brandishing copies of this in any late compliance case up to hearing.

    • I must confess to agreeing with Niki here. I think the date of issue is the date for the purposes of s214 and a landlord who has not regsitered a deposit properly by that point is (and should be) liable to the penalty. I think Francis disagrees however and remember arguing with him about this on a couple of occasions. I also feel that Tugendhat is obiter on this on the basis that the deposit in Draycott was registered long before the commencement of proceedings and so it was just not a live issue.

    • Tugendhat is certainly arguably obiter on the issue, but I predict a number of passages from the judgment being waved around in County Courts by landlords’ reps on this point until it is cleared up.

  7. There seems to be a misconception that all landlords are unscrupulous. I am a landlord and in the midst of proceedings to evict a tenant who owes me some 3 months rent but who has issued a counterclaim for 3x deposit etc. The deposit was taken by me in 2006 before the requirement under DPS was introduced but because I issued new documentation each year to remind the tenant of his obligations I am apparently considered to be at odds with s.214. I did have the deposit in a separate account but not protected in accordance with DPS. It was at worst a technical error and when the docs for the counterclaim were issued _ the day before the s.8 hearing! – I erred on the side of caution and placed the deposit in the DPS and issued the prescribed info a couple of days after the hearing (which was adjourned). The tenant has been living rent free despite receiving housing benefit and now is trying to avoid his obligations. I am the aggrieved party – YES – the landlord who has bent over backwards to be flexible with the receipt of rent. The property is my pension. The tenant is now on legal aid and their solicitor is trying to take things all the way to milk the Legal Aid system. Even if I win, I will still have to pay for my legal costs – One thing is for sure, that current tenant WILL lose his home. The agreement rums out in March and it will not be renewed. I don’t have any sympathy for tenants like this so some on here need to get real!

    • Paul. None of us are saying that all landlords are unscrupulous. Quite the reverse. I rent and my current landlord is a truly lovely specimen of humanity, albeit one incapable of drafting a valid s.21 notice. I’m sure that most landlords are similar cuddly bundles of love. But there are a lot of unscrupulous landlords. I encounter them every day.

      Now, I must say that I have a certain sympathy with your position inasmuch as the law on deposit requirements on tenancy renewal is somewhat uncertain to date and has been for a while. I would also say that of course your tenant is obliged to pay their rent and you are entitled to take steps for possession if they don’t.

      But forgive me if I say you sound like an amateur landlord who is not actually clear about the law that affects you – you do not ‘issue new documentation each year’ but rather grant a new tenancy, for starters – and as a landlord, I’m afraid, my view is that you need to keep up with the law as it applies to you. It is not ‘your pension’, it is a business and like any business it is subject to changing regulation, It is up to you to stay up to date. If you fail to do so it is not a ‘technical error’, it is a breach of the law.

      Whether or not you protected the deposit does not affect the validity of a s.8 claim if you can make out the grounds. A counterclaim for the deposit and penalty, which is what I presume is happening, could make a mess of that, I agree, although not if the tenant’s arrears are as bad as you suggest. But none of this alters your responsibility as the owner of a business to keep up to date and comply with regulation that affects you.

      I do, on occasion, advise landlords on their position and obligations. But I do, I’ll admit, usually put it more tactfully than this ;-)

      For specific advice on your situation, see a solicitor. Preferably one who actually knows about landlord and tenant law and has kept up to date with the developments of the last few days.

  8. David, you are far closer to these kinds of issues than myself; but, surely, the policy imperative is to rid the PRS of amateurs who do not understand their obligations. The tenancy deposit scheme, in some ways, is a relatively thin end of the wedge; and, albeit that “you lot” (careful distancing of myself!) have exposed its frailty at the margins, it contains a set of quite simple core requirements with a certain cut off point. The “draconian penalty” needs to be seen in light of that policy imperative and that clear obligation.

    A small point – I don’t think the government really believed that, or at least they didn’t say that, and their evidence wasn’t as clear. They wanted a simple, effective dispute resolution service that got them (and landlords) out of a potentially tricky bit of bad publicity. Looked at in that way, the fact that the TDS is only the subject of discussion on specialist websites like NL demonstrates its success.

  9. For those unfamiliar with the cases, the point about Beavis v Carman (I don’t think Bird v Hildage adds much) is that Schedule 1 to the Rent and Mortgage Interest Restrictions (Amendment) Act 1933 is written in the perfect tense.

    Paragraph (a) states:

    “(a) any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under the principal Acts), so far as the obligation is consistent with the provisions of the principal Acts, has been broken or not performed”

    The implication of the second part is that a past breach is sufficient to engage the court’s power (subject of course to the requirement of reasonableness), the natural reading of the first part (borne out by the cases) is that a past breach of the obligation to pay rent is also sufficient.

    A tenant was not able to preclude the court’s power to give possession merely by late compliance.

    Section 214(2)(a) is, unfortunately, not drafted in quite the same terms, because of the use of the present tense in relation to the court’s satisfaction. There is no context to suggest that anything other than a present failure is implied.

    Of course I think the TDS provisions are examples of really well drafted legislation, badly mauled by lawyers and (to a lesser extent) the judiciary who are reading into it what is not there and as a result getting into messes, but more of that another time.

    My personal view is that the Beavis v Carman point is not a good one.

  10. I am afraid I do not agree that the policy imperative is to rid the sector of amateur landlords. Without amateur landlords lots there would be a major shortage of housing. The imperative is to rid the sector of bad amateur landlords. The TDP legislation is not doing that.
    I accept the, well-made, point that landlords should treat their business as a business and keep themselves up to date. I have myself advocated that on a regular basis. The Rugg review stated that the Government should treat private landlords as small business people. However, the Government has not done this and has not implemented those proposals in full.
    The legislation is badly drafted (I disagree with Francis there), poorly thought out, and has not been fixed later as it so easily could have been given that some of the provisions in Schedule 10 (which deals with TDP schemes) were. TDP is a perfect example of rushed legislation without proper consultation and what results from it. What really disturbs me is that Scotland and Northern Ireland appear desperate to follow suit, probably before the end of the year. I do not believe that the legislation has done much to help tenants or protect them from unscrupulous landlords as a whole although I do not doubt that there are many success stories that could be posted here (I could post several myself).
    Given that the legislation is unclear I do not agree that landlords should be aggressively penalised for failures to follow the law where those failures are innocent and have been remedied by registration at a later date. The 14 day window is, in my view, excessively draconian and that remains my view despite all that I have read here (sorry).
    To come back to where I began this post there are far better ways of tidying up the sector than TDP. Landlord registration or a more aggressive pursuit of HMO landlords and selective licensing would be far more effective as well as more sensible enforcement by Local Authorities of the HHSRS (all things that I have also advocated). If this policy imperative is the main justification for TDP then I do not think it can be seen to be a successful concept, especially given the vast financial cost of setting it up.
    To be honest I think it would probably have been better to simply ban deposits rather than go down the current road.

  11. Hildage made clear the principles.

    A past breach was not sufficent. There had to be rent lawfully due and unpaid at the institution of proceedings/service of writ.

    Beavis was not applying the 1933 Act which had yet to be enacted. It was applying the 1915 Act

    the Rent & Mortgage Interest (War Restrictions) Act 1915
    “No order .. for the ejectment of a tenant … shall be made so long as the tenant continues to pay rent at the agreed rate ….”

    Note the present tense — “continues”.

  12. As I read it the judgement let the deposit holder off the penalty because of the particular conditions of the scheme run by The DPS. I don’t understand it fully but it all seems to turn on the interpretation of “initial requirements”.

    Does that mean that The DPS itself is at fault for failing to properly protect tenants’ rights as dictated by the act?

    If at fault do tenants have a possibility of action against The DPS itself?

    Could not The DPS scheme rules be rewritten to make it clear what the initial requirements are and to more effectively protect deposits against say landlord bankruptcy and to provide an arbitration service for late lodgements – allowing for graduation of compliance failures based on acceptable reasons – such as sickness or whatever.

    • You are right on the ‘initial requirements’ point. But I don’t think there would be a case against the DPS, precisely because, on this reading of the Act, the Act doesn’t prescribe any initial requirements for the scheme to comply with, so no breach.

      On the graduated failures – no, because this is prescribed by the Act and not something the schemes have any discretion over.

    • I have read the terms and conditions relating to the DPS and 3. Overview of how the service works

      a. The tenant pays the landlord the deposit in accordance with the terms of the tenancy agreement, if the landlord chooses to protect the deposit with the custodial tenancy deposit shceme, the housing act 2004 requires that the landlord must pay the deposit into the dps within 14 days of physically receiving it, the dps will however except deposits after this time.

      b. Following the successsful protection of a deposit, the dps will provide confirmation of receipt and other information to the landlord and tenant as detailed furether in section 13. The landlord must provide the prescribed information.

      Is this wording wrong then ? so therefore can not be relied on to ensure a court makes the correct decision. so therefore there is no 14 day rule within the act
      any help or assistance would be appreciated

    • The wording is not wrong it is simply a statement of the law as set out in s213 and s214 of the Housing Act 2004. In Draycott v Hannells it was argued for the Draycotts that this wording was a ‘initial requirement’ of the scheme and was a free-standing obligation to protect within 14 days. Mr Justice Tugendhat rejected that argument.

  13. Any idea why Universal Estates v Tiensia has been put back to 7 May 2010? I recall it was listed as a floater on 30 or 31st March 2010.

  14. Two reasons:
    (a) it might be settling;
    (b) if it isn’t settling, then it’s to be heard with another case (Honeysuckle Properties, I think), also on the TDS

  15. I’ve heard that Universal Estates v Tiensia was settled. Anyone any further info on that or the outcome of Honeysuckle Properties v Fletcher & Ors?

    • Its been heard, 7 May I believe, and we are awaiting the judgment. I think Tiensia went ahead and was heard at the same time. Naturally, we’ll have a report up as soon as we can.

    • No outcome yet. Rumour has it that it is unlikely to be handed down before late September/October, if not later. The Court has sent further questions to the parties.

  16. can confirm that nl – was reported on at recent hlpa meeting (as you probably already know). some of the questions put to counsel might give a cynic the impression their lordships weren’t really listening for part of it.

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