First the begging – or at least a request – though not on our own behalf.
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We’ll carry on doing NL regardless, but think of a donation as meaning you are getting extremely cheap legal updates…
Now, the question.
I’ve seen a deposit scheme adjudication decision (by the DPS adjudicator, since you ask), which raised an interesting issue.
The landlord had demanded payment of the (fixed) costs of a section 21 based possession claim – £355 – from the deposit. The tenant had objected. The adjudicator found for the landlord and awarded a £355 deduction.
The adjudication decision says:
In accordance with established legal principles, the burden of proof in respect of the claim therefore rests on the Agent to establish on a balance of probabilities that the Tenant was in breach of the obligations under the Tenancy Agreement, and that the sums claimed are reasonable costs incurred or likely to be incurred as a result of the Tenant’s breach.
But it does not go on to say how the possession claim was a result of a breach of tenant’s obligations.
I have not seen the tenancy agreement, but even if there were something in the agreement to the effect that the tenant not leaving at the expiry of a s.21 notice was a breach, I can’t see it being lawful or enforceable as a clause.
The simple legal position is that an assured shorthold tenancy continues until eviction by warrant. There is no obligation on the tenant to leave at the expiry of a s.21 notice, nor can the landlord’s decision to bring possession proceedings via s.21 be seen as being in consequence of anything pursuant to the tenancy agreement.
It follows that I don’t see how the court fee/fixed costs can be said to be in consequence of the tenant’s breach of obligations. If that is what the adjudication decision relies upon, which it appears to be, I think it is wrong in principle.
There may be other arguments about it being a debt owed by tenant to landlord, at least if there was a court order. But I’m struggling to see how even that could be considered to be in relation to the performance of the tenant’s obligations under the tenancy (save any contractual costs of possession provision in the tenancy agreement). But this was not what the adjudication decision set out as its reasoning.
What do people think?
I’m doing a seminar session at the Housing Law 2016 conference tomorrow, 13 December (or today if you are reading this by email update). If you are at the conference, do say hello.