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.
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).
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)