The Jabberwock of the tenancy deposit scheme came whiffling again, in the tulgey wood of Northampton County Court. This time it was the clause that catch to beware of. And there’s a disrepair claim in there too.
Paula O’Brien v Jacqueline Jones & Andrew Alexander (T/A Belvoir Huntingdon). Claim No 9KG00335 12/02/2010 [On Lawtel for some reason]
Ms O’B (hereafter B) was the assured shorthold tenant of Ms J (hereafter J), whose managing agent was Mr A (T/A BH) (hereafter ‘the agent’). The tenancy was ended by agreement on 19 December 2008. B had withheld the last two months rent due to her concerns about the condition of the property.
At the time of hearing, and after some amended pleadings, the position was that B claimed against J under s.11 Landlord and Tenant Act 1985 for disrepair. B claimed against J and the agent for an order under s.214(3) Housing Act 2004 for the deposit of £950 and the 3 x payment. J counterclaimed for the last two months rent, which was not opposed by B, save for a set off.
No dispute was raised by J or the agent as to whether the deposit was returnable, save for a set off against the rent claim. The Agent also conceded that any order under s.214(3) could be against landlord and agent (although the Court took the view that such liability for the agent was far from clear).
The deposit was protected with The Dispute Service and had been protected by the agent within 14 days of receipt.
What was at issue and formed the basis of B’s claim under s.214 was that the information provided by the landlord did not meet the requirements of s.213(5); and/or that the landlord had not complied with the initial requirements of The Dispute Service under s.213(3).
Under s.213(5), B argued that the landlord had failed to provide a personal address and telephone number under the prescribed information. The landlord had provided an address and phone number in the tenancy agreement, pursuant to s.48 Landlord and Tenant Act 1987. The address was the agent’s address. B argued that the Housing (Tenancy Deposits)(Prescribed Information) Order 2007 required a personal address for the landlord. The landlord had in fact provided a personal address before B made her application, and, in agreement with HHJ Bullimore in Harvey v Bamforth (our report here), there is no breach where the prescribed information is provided after 14 days but before and application was made by the tenant. But in any event, it was not found that a failure to provide a personal address rather than an agent’s or business address was a breach. The Order did not provide that it must be a residential address if that is different to an address for notice and service under s.48(1) L&T 1987.
Under s.213(3), B argued that the tenancy agreement did not comply with the initial requirements of the TDS scheme in that the TDS required their ‘members’ to include certain specified clauses (the ‘G Clauses’) and these were not in her tenancy agreement.
J and the agent argued that including the clauses, or the information they contained, in other documentation was sufficient. B had had the tenancy agreement, inventory, prescribed information and a leaflet called ‘What is the Tenancy Deposit Scheme’, (this leaflet was unfortunately not in the evidence). B had also requested from TDS the content of the G Clauses and had been provided with them by TDS.
The Court found that the information that had been provided was also to be provided under the TDS initial requirements, so seemed unlikely to by itself remedy the lack of the G Clauses. The provisions on the G Clauses in the TDS rules of membership were clear – the clauses were to be included in the tenancy agreement and their wording was not to be changed or amended. TDS had apparently confirmed in correspondence with J and the agent that they considered that the tenancy agreement was in breach of their conditions, although they did protect the deposit. It was not clear, as argued by J and the agent, that the issue was a mere technicality and didn’t prejudice B, as the G Clauses did contain significant information and further, the TDS had stated that due to the breach, their arbitration service would not be available.
S.214(2) was engaged. Contrary to the argument of J and the agent that the words ‘as the court thinks fit’ in s.214(3) meant a discretion as to whether to make any order at all, the only alternatives were to order return or protection of the deposit. The deposit had been registered, but could not be dealt with under the TDS dispute resolution scheme. Ordering the return of the deposit was the only viable option. Having made such an order under s.214(3) an order for the 3 x penalty must be made under s.214(4) – so the order was for a payment of £3,800 to B.
On the disrepair, the items complained of that engaged s.11 Landlord and Tenant Act 1985 and that had caused loss of enjoyment and inconvenience were:
- Rising damp to one wall of the dining room with raised wallpaper and some damp spotting, sufficiently serious to require remedial action. Complained of in August 2008, should have been remedied by October 2008 at the latest, so damages for a period of two months, albeit that the inconvenience was relatively minor.
- No hot water due to a defective boiler following a leak. The boiler was off for a week and should have been repaired within 4 days, so damages for the remaining 3 days.
- Kitchen floor, damaged in the boiler leak. Part of the kitchen floor was removed and not replaced in early October 2008. J and the agent argued that the delay in repairing was due to difficulties with the insurers, who would not authorise works for over a month. This was not a valid reason for delay. It was not reasonable to wait for the insurers to deal with the claim. Damages for a period of 7 weeks.
- Kitchen door – the frame was pushed out of the wall by the expanding floor boards due to the boiler leak, leaving a gap between frame and wall. There were no drafts or water penetration, so the inconvenience was solely not being able to use the door, which was a minor inconvenience as there was another door to the garden. 7 weeks damages.
- Boiler and wiring left exposed after works. J’s enjoyment affected as she had to take care to ensure the safety of her children while in the kitchen.
- Boiler debris and loose decking. Boiler parts were left on the outside decking and a piece of decking had been left out of place. Both were at best minor inconveniences. The boiler parts could have been moved by B.
All together, damages for disrepair assessed at £500. Rent was £950 per month and the longest period of damages – the damp – was two months.
The remainder of the items claimed by B were either not capable of being disrepair under s.11, had not been reported and/or had caused no inconvenience.
The set off of £1700 in unpaid rent against the awards to the tenant had been agreed by the parties.
Apart from the disrepair claim being an illustration of how tenants tend to routinely over value claims – B’s view was the withholding the last two months rent was an appropriate recompense for her inconvenience – this is an interesting (although County Court DJ and non-binding) decision on the meaning of ‘complying with the initial requirements of the scheme’. While Harvey v Bamforth on late compliance in providing the prescribed information is expressly agreed with, it appears in this case that a breach of a Scheme’s requirements for something like the terms of a tenancy agreement could fall foul of ‘the initial requirements of the scheme’ and be non-remediable at a later point.
However, how such a breach is to be discovered is another matter. B’s evidence, entirely reasonably, was that she was unaware that there had been such a breach. Unless the other documentation provided to the tenant sets out the requirements of the Scheme for its members, or the required inclusions such as the G Clauses here, how is the tenant to realise that there has been a breach, unless or until the Scheme refuses to provide the arbitration? B apparently discovered the omission only at the end of the tenancy when she approached the TDS about their dispute resolution scheme, only to be told that the omission meant TDS could not deal with the dispute.
In short, what this looks like raising is a form of breach with is both irremediable by the landlord and unlikely to be discovered by the tenant until the Scheme refuses to provide arbitration services – at or after the end of the tenancy. So, yet another Jubjub bird to beware of in the Housing Act 2004 provisions, or is it a frumious Bandersnatch to shun?
(I do wonder why the landlord didn’t simply return the deposit in full and then seek to argue that no order under s.214(3) could be made, so no award under s.214(4), but perhaps the TDS would not allow that once proceedings had begun.)
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