This is a failed possession and tenancy deposit case now of largely historic interest, though the principles still largely hold true. There is also an interesting point on the period of the tenancy – contractual date v rent date. Our thanks to Legal Action’s ‘Recent Developments in Housing Law’ , Edwards Duthie and Liz Davies for the case.
Lappin v Surace Romford County Court 13 June 2012
Ms Surace was the assured shorthold tenant of Mr Lappin on a 12 month term to 19 April 2010. On the same day – 20 April 2009 – that the tenancy was granted. Mr L served a section 21 notice. Ms Surace paid a deposit of £1,500 which Mr L protected. However, Mr L did not serve the prescribed information required under the then Housing Act 2004 s.213(5) & (6).
Ms S continued as the statutory periodic tenant. Mr L served two more s.21 notices. Each notice expired on the last day of a month (28/02/20111 and 31/10/2011) and there was no saving clause.
Mr L brought possession proceedings, presumably under the accelerated process. Deputy District Judge Oldham made a possession order. No evidence was taken but he found that the deposit was protected and it wasn’t relevant if Ms S knew that it was. He found that rent was due on the first of each month so the statutory periodic tenancy ran to the last day of each month. The s.21 notices were valid.
Ms S appealed. HHJ Wulwik allowed the appeal.
The 20 April 2009 section 21 notice was invalid as the prescribed information had not been served at that date. The DDJ had wholly failed to deal with whether Ms S had been served with the prescribed information and if so when.
There was no great difficulty in requiring a tenant to pay rent on a different date to the periodic date of the tenancy, here rent on the first of the month on a monthly periodic running from 20 of one month to 19 of the next. Salford CC v Garner [2004] EWCA Civ 364, [2004] HLR 35, CA considered. The s.21 notices should have specified the last day of the period of the tenancy, the 19 of a month.
As neither of the s,21 notices did so and there was no saving clause, the notices were invalid. Possession claim dismissed.
Of course, the Localism Act 2011 changed the rules around the period for protection of the deposit, and provision of the prescribed information. It also changed the rules on when a s.21 notice may be served if the deposit and information weren’t dealt with within 30 days of receipt of deposit. However, it remains the case that a s.21 notice is invalid if the prescribed information hasn’t been served on the tenant.
The Circuit Judge took a firm approach to what some regard as the Gordian knot of the correct termination date of a s.21 notice where the period of the tenancy and the rent payment dates do not match. Some, including DJ Hickman in the Law Gazette, don’t think it is so straightforward.