[Edit 24 May 2011 – To all those coming from the Netrent blog, the case report you actually want is this one. Looks like Netrent got confused between the County Court case and the Court of Appeal hearing of the same case.]
Hashemi & Johnson v Gladehurst Properties Ltd, HHJ Cryan, Clerkenwell & Shoreditch County Court, 9 December 2009, Unreported
This matter is by way of an appeal from a decision of DJ Stary refusing to set aside a decision of DJ Manners to strike out the Claimants claim for the usual penalty of three times the deposit pursuant to s214 of the Housing Act 2004 as a response to the Defendants failure to register it with an approved scheme.
The tenancy agreement had implied that the deposit would be registered but it required the Claimants to request this and pay an additional administrative fee. They did not do so and the deposit was never registered. The Claimants vacated the property in 2008 and after the Defendant made deductions from their deposit they commenced a claim for the return of the deducted money plus the normal three times the deposit figure.
The claim had a number of procedural issues. For one, although there were two tenants, and therefore two Claimants, only one of them, Mr Hashemi, appeared to be bringing the claim, Mr Johnson apparently having returned to America. By the time of the hearing before HHJ Cryan J had produced a witness statement which appeared to make H his agent in the case, however the precise nature of the relationship and the consnet given was not clear.
Perhaps the most interesting aspect of this case is the differing views of the tenancy deposit provisions on the part of all three judges involved in this matter.
- DJ Manners struck out the claim on the basis that the tenancy had ended before the application was made.
- DJ Stary refused to overturn the decision of DJ Manners on the basis that the Claimants had acted unfairly by not notifying the Defendant during the tenancy of its failure to protect the deposit when it might have been able to remedy the situation. DJ Stary also seemed to feel that she had a degree of discretion in the making of any order in regard to an unprotected deposit, something not provided for in the Act.
- Finally, HHJ Cryan, set aside the decision of DJ Stary. He got the law right but still made an error, albeit a trivial one, in stating that there were two custodial deposit schemes and one insured scheme as opposed to the other way around. He dismissed the argument advanced for the landlord that as the Act stated that the application could be made by ‘the tenant’ it could only be made during the currency of the tenancy and not after it had ended.
HHJ Cryan has restored the claim for the Defendant. We understand that there is a permission to appeal request pending in the Court of Appeal but that this has been stayed until after the decision in the conjoined matters of Universal Estates v Tiensia and Honeysuckle Properties v Fletcher.
This case is interesting in respect of the argument that the tenant can only claim during the lifetime of the tenancy which was dismissed; the suggestion by DJ Stary that a tenant should not deliberately wait until after the end of the tenancy to ‘ambush’ the landlord with a claim, also dismissed; and finally the suggestion that where there are joint tenants they must make the claim together, a point which was not decided due to the involvement of the second tenant by the time of the appeal but one which has apparently swayed judges in other County Courts.
The full judgement can be found here.
With thanks to William Ford of Osbornes who provided a copy of the judgement.