Our new copy of Legal Action flopped onto the mat here at Nearly Legal Towers this morning. Looking at the reported cases a pair of tenancy deposit matters caught my eye. One of these we have already written about here.

In Baafi v Mapp, Central London County Court, 24 June 2010 a landlord had sought a possession order on the basis of a section 21 notice. The tenant defended the claim on the basis that the landlord had not properly complied with the requirements of the Housing (Tenancy Deposits) (Prescribed Information) Order 2007, he also counter-claimed for the now-customary penalties. The landlord had registered the deposit with the MyDeposits scheme and provided the tenant with their standard form of certificate. This certificate contains a paragraph making clear that the MyDeposits certificate does not, on its own, supply all the information required by the Order. Specifically, it fails to notify the tenant of the procedure to be followed where the landlord or agent cannot be contacted after the end of the tenancy and also fails to inform the tenant of the circumstances under which the landlord will make deductions from the tenancy deposit. Normally, MyDeposits would expect these matters to be dealt with in the tenancy agreement. The landlord was using an agreement which was describe as “archaic” and which failed to address the items missing from the certificate. Surprisingly at first instance DJ Gerlis applied something he described as a ‘purposive approach’. He took the view that as the deposit had been protected the lack of all the prescribed information was not that important. He therefore awarded possession and dismissed the tenant’s claim. On appeal HHJ McMullen QC held that a purposive approach was not required as the statutory framework was clear. He also found that had a purposive approach been required he would have found that the purpose of the regulations was the proper protection of the tenant’s deposit which was not going to occur when the tenant had not been provided with information as to what would happen if the landlord disappeared. Possession order set aside and counter-claim allowed.

It is worrying that some judges are still prepared to exercise some form of ‘discretion’ in a matter where it simply does not exist.