Deposits, leaflets and company landlords

Bali v Manaquel Company Limited, County Court at Central London (HHJ Hand QC), 15th April 2016 (Unreported elsewhere. We’ve seen a note of judgment)

This was an appeal of a possession order made against Mr Bali at Lambeth County Court. Mr B was the assured shorthold tenant of Manaquel Company Limited. A deposit was taken and protected. Manaquel subsequently purportedly served a section 21 notice and brought possession proceedings. At first instance, the issue was whether Manaquel had complied with the requirements on serving the Prescribed Information.

The first instance Judge found that they had and made the possession order, and the same issues were then raised on appeal.

The appellant asserted that the information that had been served was defective for two reasons.

i) The landlord had not included the Deposit Protection Service leaflet for tenants. The landlord had included a print out of the DPS ‘terms and conditions’ but not the leaflet.

The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 includes s a requirement at 2(1)(b) to give the tenant:

(b) any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act

On this, the appeal Judge held that the requirement was to provide ‘any information contained in a leaflet’, not necessarily the leaflet itself. As it was common ground that the DPS ‘terms and conditions’ provided included somewhere in their considerable length all the information that was contained in the DPS leaflet, the requirement was satisfied and this ground of appeal failed.

(Rather confusingly, DPS say on their model prescribed information that ‘terms and conditions’ must be included. The ‘terms and conditions’ available for download on the site appear to be different to those referenced in the judgment. But this does not affect the general point. Even more confusingly, DPS do provide a leaflet for tenants, here, but don’t tell landlords to use it.)

ii) The landlord had not properly provided a certificate as required by s.2(1)(g)(vii) of the 2007 Order. This requires:

(vii) confirmation (in the form of a certificate signed by the landlord) that—
(aa) the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and
(bb) he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

The specific issue was that the certificate provided was ‘signed’ with Manaquel’s name written in manuscript as Manaquel Co. Ltd, and signed PP with illegible initials. Mr B argued that this did not comply with the requirements of s.44 Companies Act 2006. At s.44(2), this provides

(2) A document is validly executed by a company if it is signed on behalf of the company–
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature

The question was whether the prescribed information certificate was a document that required ‘execution’.

The appeal judge held that it was, as it was a certification of the accuracy of the information for a ‘formal legal purpose’.

Accordingly, the requirement of s.2(1)(g)(vii) of the 2007 Order had not been met, the prescribed information had not been given in full and the section 21 notice purportedly served was not valid. The Judge acknowledged that this might well be a trap for the unwary, but the requirement was for a signed certificate, and that must be in a manner compliant with the Companies Act 2006.

The resulting order was stayed for 7 days for the Respondent to apply for permission to appeal. We will see if there is an appeal.

Comment

We must note that the Deregulation Act 2015 has varied the requirement for the landlord to sign to include ‘the initial agent’ in the definition of landlord, but this would not have availed Manaquel either. (It also raises an interesting question on the appropriate signing if the letting agent is itself a limited company).

This seems like a very technical point, but the court took heed of the importance placed on compliance by the court of appeal in Ayannuga v Swindells [2012] EWCA Civ 1789 (our note).

So, something else to check – for both landlords and tenants advisors – has a company ‘signed’ the certificate, and if so, is it compliant?

Meanwhile, the decision on the leaflet takes a technical reading the other way. The purpose of the clause is clear – if the deposit scheme provides information for tenants for the landlord to give them, this should be done. However, the precise wording of the clause does allow for a distinction to be drawn between the leaflet and the information contained in it.

The upshot, for both landlord and tenants (and their advisors) will be careful scrutiny of whatever has been provided, in comparison to the relevant scheme leaflet, to check if all the ‘information’ has indeed been given. Actually providing the leaflet is by far the easier option for landlords!

(Disclosure. My firm acted for the appellant, in the person of Deirdre Forster.Counsel was Nick Bano of 1MCB Chambers)

 

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 , .

42 Comments

  1. An interesting case thank you!

    I’m not sure I entirely agree with the leaflet finding where the DPS is concerned.

    The DPS have told us on more than one occasion that they don’t produce any leaflet for the purpose of the prescribed information order.

    The prescribed information order requires the landlord (or agent) to provide:

    > any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act;

    The DPS provide no such leaflet to the ‘landlord’ only to the tenant. The requirement in the order is in relation to a leaflet supplied to the ‘landlord’.

    On looking on the DPS website (www.depositprotection.com) under -> documents -> landlord, no leaflet is provided. Further, on looking at the sample prescribed information template provided by the DPS, no leaflet is required nor supplied – only the scheme terms.

    I entirely accept the point is mute because according to this case, the terms and conditions are enough anyway. However, I respectfully submit in the case of the DPS, the leaflet was never necessary. This is not the case with other schemes who do provide a leaflet for the ‘landlord’ explaining the provisions etc.

    All that being said, of course as you suggest, landlords and agents should just supply the tenants leaflet and be done with the argument (the agreements and prescribed information we supply for DPS have always contained said leaflet (and will continue to do so)).

  2. Sorry, does it not say above:

    “… The landlord had included a print out of the DPS ‘terms and conditions’ but not the leaflet. …”

  3. Pingback: Deposit Prescribed Information and Company Signing | GRL Landlord Association

  4. Will the problems with tenancy deposits ever end?

    Section 212 provides that “references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies” so it seems to me that the decision on the certificate is rather unduly restrictive even without the change of the Deregulation Act.

    It seems that the requirements should be changed to be more practical as I don’t think that such a restrictive interpretation was intended.

    • The question was always whether s.212 extended to the 2007 order. I was of the view that it did, but the Deregulation Act clarified the position. But that still doesn’t help whether, as here, the company has purportedly signed the certificate.

    • If it was signed PP it should be taken as signed on behalf of the company, therefore on behalf of the landlord according to s.212, IMHO.

    • But not signed by ‘someone acting on behalf’ of the landlord, which is the s.212 definition. Doesn’t allow any random person to sign something ‘on behalf’ of. And it purported to be signed by the company, not identified agent.

    • Well, as said if this decision is upheld then the order must be urgently amended.

      Preferably the whole legislation should be scrapped as it is clear that it is too easy to pick wholes in it to unfairly hit landlords.

    • I have to say, on reflection, I am not persuaded that the judgment is right. Not because of s.212, but the Companies Act. a) Not at all sure that the certificate is a document ‘that required execution’ – this really applies to deeds and b) s.43(1) CA enables a contract to be made by the company “(b)on behalf of a company, by a person acting under its authority, express or implied.”. Now the certificate isn’t a contract, but still…

    • If I follow the reasoning it seems that the key issue is that the person who ‘signed’ did so in the name of the company.
      Following s.212, if that person had signed under her own name (as someone acting on behalf of the landlord) it should however have been fine.

    • No. s.212(9)(a) says “references to a landlord or landlords in relation to any shorthold tenancy or tenancies include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies”, so (assuming for the moment that s.212 does apply to the 2007 order) it means agents – the person has to be acting on the landlord’s behalf in relation to the tenancy, not just any old person signing ‘on behalf of the landlord’. And the Companies Act section is about precisely who can sign and how ‘on behalf’ of a company. So, s.212 is only landlord or landlord’s agent.

      Then, does s.212 even apply to the 2007 Order? The argument accepted by the judge in this case is that the Deregulation Act shows not, because the Deregulation Act specifies two specific meanings for ‘landlord’ in the 2007 order – landlord or ‘initial agent’. The point being that Parliament could have just said s.212 applies to the 2007 order, but didn’t, instead setting out exactly who it means. The implication being that before the Dereg Act, the meaning of ‘landlord’ in the 2007 Order was entirely specific and meant ‘landlord’ only.

  5. Interesting case and not one that surprises me, having seen how prescriptively they have read previous cases. Not that I think that makes them right. I take GuildRL’s point, the tenant guide is not listed under the Landlord documents and we have always relied on the T&C, simply because that is what is clearly stated in the The DPS’ own prescribed information. No problems with that part of the judgement.

    Regarding the signing, this is the interesting point. I take the point that in trying to “sign” as the company a problem was created as this is not the company and it is not the agent. However, and presuming this was a pre Deregulation Act case, if it had been signed by someone in their own name and identified as the agent, I presume you would agree this would have been fine? As Romain says the act in section 212 clearly says the definition of the word landlord include anyone acting on behalf of the landlord. The fact that the Deregulation Act “disconnected” this definition from the regulations clearly implies that to this point it did apply prior to the Deregulation Act. Therefore, if someone prior to the Deregulation Act identified themselves as the agent and signed I cannot see they should fail.

    However, this leaves and interesting problem post Deregualtion Act that it will be interesting to watch. In the new definitions of the landlord (in 797, the prescribed information regs), the definition of the landlord now includes the “initial agent”. The requirement to sign the certificate applies to the “initial agent”. Does this not raise the possibility that if the landlord, some years into the letting, is now using a new agent, the new agent cannot comply with the requirements as they were not initially involved? Or do we think that you become the “initial agent” at any point, simply because you are completing the initial requirements?

    • On the s,212 point, my view has always been that this arguably did extend to the 2007 Order definition of landlord. However, this was not tested, and others argued otherwise (it is a distinct piece of legislation, so quite a lot of ‘reading across involved). So, pre Deregulation Act, I couldn’t say it wouldn’t fail.

      Now, of course, the argument is that the Deregulation Act specifies precisely who can sign the certificate, landlord or initial agent, so that nobody else validly can. Dereg Act could have said s.212 HA 2004 applies to 2007 Order, but didn’t.

      On the initial agent – I’d say yes, agent at the time of the ‘initial requirements’. But of course, the Deregulation Act also removed the need for ‘re-compliance’, assuming deposit protected and PI served in the original term.

    • If you take the requirements of 2007 797 2 (G)(Vii) to mean the actual landlord is the only person who can sign the PI, is it not logical that (G)(vii)(bb) means that the agent cannot provide the prescribed information either as the same word landlord is used.

      I would suggest that if the Deregulation Act changes simply wanted to change the definition as you suggest (to include the agent) and it previously meant only the landlord, then they could simply have gone through the legislation and made the changes from “landlord” to “landlord or initial agent” and “landlord or current agent”. However the fact that felt it necessary to include (5) and specifically disconnect the 2004 definition indicates that it was previously linked. I struggle to accept that the original act (2004) would be likely to define that the definition of the word landlord in the 2007 regulations was reasonable as they were not drafted for another 3 years and, considering how late the deposit changes were introduced, it was not that well thought through.

    • You’ve lost me in the second part of that. But the point is that if s.212 definition did apply to the 2007 order, there would have been no need for the Deregulation Act amend to the 2007 Order definitions.

      One could argue it was just ‘to clarify’ but then why impose a still more restrictive definition than s.212?

    • The point in the second part was that the word landlord is used twice in sub para (G) about the certification. If it meant landlord only, and not landlord and someone acting on the landlord’s behalf, then one would have to read both words to mean the same and this would mean that someone acting on behalf of the landlord could not provide the prescribed information to the tenant.

      I would see the deregulation act as needing to change the prescribed information regs for the opposite reason. If the definition was taken from the 2004 act then, as now only one set of prescribed information is needed they have to clarify that prescribed information signed by the original agent is sufficient even if the agent has changed and a new agent is involved on renewal or possession. Ie they are simply dealing with the need to deal with the removal of the requirement to re-serve on each new agreement. If they intended that it had to be the landlord originally, then why would then need to change that, they could have still left it as just the landlord and, as I said originally, if the section 212 definition did not apply, why did they add the clause saying it did not apply (when it did not) and there is no great history of cases arguing this point.

  6. Well, on the company/execution point, the enfranchisement case of Hilmi [2010] EWCA Civ 314 supports the HHJ.

    • I agree with Giles. Accepted that the methods of execution set out in section 44 Companies Act must be followed where it is necessary for a document to be executed “personally” by the company itself rather than by an agent on its behalf. I am not sure, however, that the Prescribed Information Certificate is such a document. Especially since the Deregulation Act now specifies someone other than landlord – namely initial agent – who can sign. This must envisage a landlord appointing an agent who is expressly or impliedly authorised to contract on its behalf.

    • But does that not invite the question of the agency being a limited company and how they can sign the document? This is going to be a far more common occurrence than the agent signing the landlords name. A huge percentage of agents will be companies and they will not comply with CA signing procedures for Prescribed information.

  7. It is about time this mess was sorted out! Protecting a deposit should be easy for a landlord to get right….

    Personally I would rather that the tenant had to pay the deposit directly to protection scheme, and the protection scheme to confirm to the landlord it has been paid. The protection scheme should also be reasonable for 100% of the deposit protection paperwork. (Landlord setup a “request for deposit” on line, tenant then pays the scheme in response.)

    At present this is such a shambles that it discredits the concept of deposit protection…. I have to question how the lawyers that right these laws ever pasted a basic logic test!

  8. A signatory is a person, not a company. Even if p.p., it is a person’s name, the person who actually writes it.

  9. Pingback: Deposits, leaflets and company landlords – Nearly Legal | Current Awareness

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  11. The dps companies pick up on this – we had one refuse to adjudicate a dispute because the signature and (misspelled) address on the deposit protection form was him personally, but the landlord on the lease agreement was his company.

  12. Pingback: HASL member takes landlord to court | Housing Action Southwark & Lambeth

  13. A question that keeps coming up: does a new landlord have to re-serve the prescribed info on the tenant? For example, if the property is sold. Since the PI contains vital information (landlord contact details etc.) I would have thought this a legal requirement.

  14. I just want to seek some clarification on this issue

    Where an agent signs the prescribed information on behalf of a company landlord, does this need to be complied with section 44 CA 2006?

  15. Further to my previous post about new landlord/serving PI, was informed by Shelter that if deposit in custodial scheme (not insurance) then landlord doesn’t have to serve new PI. However, I take same view as Giles

  16. Would it be possible for you to send me a copy of the judgement please? Or let me know where I can obtain a copy (I can’t find it on Bailii)

    I’m curious as to why the judge held the provisions of s.44 must be followed. Surely if the certificate is required for a formal legal purpose then so is the tenancy agreement, and hence s.44 should be adhered to when executing tenancy agreements (not as a deed)? Why would s.43 (1)(b) of the Companies Act 2006 not be sufficient?

    S.43
    (1)Under the law of England and Wales or Northern Ireland a contract may be made—
    (a)by a company, by writing under its common seal, or
    (b)on behalf of a company, by a person acting under its authority, express or implied.

    • No public judgment, I’ve seen an unapproved note of judgment so can’t circulate.

      The tenancy agreement would be a contract for s.43 purposes, but the argument appears to be that the Prescribed Info is not a contract.

  17. Hello. Am I reading correctly that this was pre- dereg 2015? So when the posts mention before deregulations they mean before 1 October 2015? So any prescribed info after that date can now be signed by the agent as expressly allowed for in the new deregulations?. But the whole point here is that A) the statue specifically used to say landlord and B) even if it were accepted that its signed in proxy that it cannot be a limited company name or it would require two signatures but c) could be one signature if its an agents name given in person rather than a limited company name – Exept that it brings us back to A. Does the specific alterations in the new deregs not imply that a change and clarification was indeed needed and that therefore it should stand to the letter as it was before the changes were made?
    In principle I think the judge was right but mainly as it was signed in the name of the company as opposed to the name of the agent. I dont see how the agent is accepted as acting for the landlord in all matters apart from this. I do however agree that where that agent is a company, that the company sign as companies should.
    The fact that it has never come up before does not make it a frivolous legal argument, just a very astute one.
    After all who can forget the section 21 “on or at” debates , yet many of those appeals were upheld until a change was made. Technicality it may be, but a darn good spot by the tenant.

    • Yes, pre Deregulation Act coming in to force.

      I think the question of agents signing, where the agents are themselves a limited company, is an interesting one in the light of this judgment.

  18. Pingback: Deposits and Company Landlords | Painsmith Solicitors

  19. Presumably the safest course of action (but one which is likely a hassle to implement) is: where you have an agent (which itself is a company) which has been appointed by the landlord is for the agent to sign the Prescribed Information in a manner which complies with section 44 of the Companies Act 2006?

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