Too soon?

Our thanks to Sally Blackmore of Ely Place Chambers for her note of this deposit case, which unaccountably slipped past us at the time (a year ago). The issue is the effect of the landlord providing the prescribed information before a deposit has actually been received.

The parties aren’t named, nor is the court (though I’m guessing Barnet County Court). But the facts are as follows.

This was a possession claim based upon a s.21 notice. The tenant defended, and sought summary judgment, on the basis that the landlord had not complied with section 213(6) Housing Act 2004, as the prescribed information had not been provided to the tenant and any relevant person ‘within the period of 30 days beginning with the date on which the deposit is received by the landlord’ – s.213(6)(b) – thus no s.21 notice could be served, under s.215 HA 2004.

The deposit was to be provided for the tenant by London Borough of Barnet. On the landlord’s account, LB Barnet required the landlord to satisfy certain matters before the money for the deposit would be released.  These matters include that the council must be shown a deposit protection certificate and evidence that the prescribed information has been given to the tenant.

(We’ll pause for a moment to note that this doesn’t entirely make sense. There is no way that a deposit protection certificate can be provided before the deposit has been received and registered. Unless the landlord is also fibbing to the protection scheme. But no matter, as it is the prescribed information that concerns us here.)

Whatever the actual facts of the matter, it was common ground that the prescribed information was given to the tenant, but before the landlord had received the deposit.

The District Judge held that the wording of s.213(3) and (5) meant that parliament had intended that the deposit should be protected and the prescribed information given to the tenant after the deposit had been received. Providing the prescribed information before the deposit was received by the landlord was not ‘within 30 days beginning on the date’ the deposit was received.

It followed that the s.21 notice could not be served and the possession claim was dismissed on summary judgment.

Comment

This is a first tier county court judgment, so not binding at all. But, the decision does have a point on the wording of s.213 HA 2004.

There may indeed be other reasons why giving the prescribed information before the deposit is actually received would be a bad idea. Not least because 2.(1)(g)(i) of The Housing (Tenancy Deposits) (Prescribed Information) Order 2007 says that the information must contain “the amount of the deposit paid”, which would be, well, difficult if it hasn’t been paid. Thus the prescribed information may not actually have been given at all.

There are potential pitfalls here for landlords and agents. Some of the deposit schemes require the prescribed information to be included in the tenancy agreement (apart from s.2(1)(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(3)”, obviously). It is not wholly unlikely that the tenancy agreement (and the prescribed information) has been given to the tenant before the landlord has received the deposit. If so, and if the reasoning of this judgment gets broader traction, which it may, then this is a dangerous practice.

The answer, of course, is simple. Once the deposit has been received, provide the prescribed information again, within the 30 days. But people are going to have to remember to do that.

If it is true that Barnet Council demanded that the landlord show that the prescribed information had been provided to the tenant before they would had over the deposit payment (and we have only the landlord’s word for that), then they would be a very silly council indeed – for the reasons given above. It is not actually possible.

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, Possession and tagged , , .

4 Comments

  1. As regards the supply fo the certificate before reciept of the depoist (“fibbing”), I had this same argument with well known national estate agents, Mydeposit scheme and the property ombudsman. They all told me that it was ok to lie about it. Just as well I did have to get a possession order.

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  3. Tenancy agreements can be tricky territory, particularly regarding deposits and other exchanges of money or information. The best bit is to contact your tenant frequently with updated information about their contract, tenancy agreement etc. Then you can avoid these sticky situations.

    • That would potentially be a very bad idea. The tenancy agreement and contract cannot and should not be ‘updated’, so there should be any further information about them required so long as everything that should have been provided at the commencement of the tenancy was done.

      ‘Correcting’ information – for example deposit prescribed information – would simply be evidence that the prescribed information was not given correctly in the first place and so potentially open up a deposit claim.

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