03/06/2019

Deposit penalties. How many breaches is too many?

Howard v Dalton, County Court at Dartford, 7 May 2019 (unreported, note of judgment with grateful thanks to Rea Murray of 4-5 Grays Inn Square).

A quick note, because Rea Murray has done the heavy lifting for me. We’ve seen the ‘claims for multiple deposit breaches’ issues before, although in the guise of whether a claim could be brought for a number of tenancies at once. This was a county court appeal to a circuit judge on exactly what counted as a claimable breach, and how many could be claimed per tenancy.

Ms H was the tenant of Mr D. The first tenancy was in 2007. A deposit of £900 was paid, then on signing the tenancy agreement, a further £845 was paid to Mr D, with a receipt given saying ‘deposit remainer’. There were a further seven tenancy agreements entered into between the parties.

At first instance, it was found as fact that the deposit was not protected in a scheme until 2014, and no prescribed information was ever served.

Ms H brought a claim. Mr D defended, but both parties were unrepresented and Mr D did not attend first instance trial. Ms H’s particulars claimed breaches of Housing Act 2004 s.213(3) (failure to protect) and s.213(6) (failure to provide prescribed information) in respect of eight tenancies, but did not specify a sum.

The first instance district judge held that there had been two breaches (failure to protect and failure to provide prescribed information) for each of the eight tenancies, so 16 breaches. The award was three times the deposit of £1745 for each breach, giving a total of £83,760.

Perhaps unsurprisingly, Mr D appealed.

On appeal, the circuit judge held:

S.214 Housing Act 2004 provided a point of access for damages for either a breach of s.213(3) or s.213(6). A single award of damages was intended regardless of the number of individual breaches.

A failure to protect under s.213(3) would inevitably give rise to a failure to provide prescribed information under s.213(6). It was not Parliament’s intention that damages should be awarded for each breach, rather than only either breach. The requirement to provide prescribed information could not be independent from the requirement to protect.

The penalty was therefore one penalty per tenancy.

Mr D had raised limitation on appeal, and this was valid as the pre-action correspondence had not set out that eight tenancies would be relied upon at trial. 6 years limitation was applied, reducing the tenancies claimable to four.

The second payment of £845 was rent in advance, not a deposit – applying Johnson v Old (2013) EWCA 415 (our report).

The penalty was reduced from three times to two times the deposit, (not entirely clear why).

The deposit penalty payable to Ms H was therefore £7,200.

Comment

While slightly raising an eyebrow that Mr D succeeded on factual points (the rent in advance) on appeal despite not having turned up to trial, the legal points strike me as right.

S.214(1) Housing Act 2004 provides

(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy on or after 6 April 2007 , the tenant or any relevant person (as defined by section 213(10)) may make an application to the county court on the grounds—

(a) that section 213(3) or (6) has not been complied with in relation to the deposit, (…)

So, stated as in the alternative, not additionally. At least per tenancy.

On the other hand, the finding that Superstrike Ltd. v. Rodrigues (2013) EWCA Civ 669 meant that claims for breaches in respect of each subsequent tenancy could be brought in one claim also strikes me as right. (Subject to any limitation defence, of course – 6 years prior to issue of the claim).

The reduction from 3 times penalty to 2 times penalty is also somewhat mysterious, but such is the nature of the court’s discretion in this regard.

The usual caveats apply – this is a county court appeal, so not binding and persuasive at best, save in the CJ’s immediate area. But it makes sense, at least on the number of breaches that can be raised.

 

 

 

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.

53 Comments

  1. kjetilniki

    I do not know the full facts of the case and there may be other matters contradicting my thoughts.
    Limitation

    Mr D had raised limitation on appeal, and this was valid as the pre-action correspondence had not set out that eight tenancies would be relied upon at trial. 6 years limitation was applied, reducing the tenancies claimable to four.

    As I read the posting
    1 in pre-action corresp T did not set out that all 8 tenancies would be claimed.
    2 T did claim for 8 tenancies
    3 L did not plead limitation
    4 an award was made for 8
    5 L appealed
    6 the Circuit Judge allowed L to claim limitation for the 1st time on appeal

    As I understand it, limitation has to be pleaded to amount to a defence and that it is too late to raise it for the first time on appeal. Not mentioning it in pre-action correspondence does not seem to me to be a relevant reason to allow it ion appeal, (as opposed to T having been positively misleading)

    Reply
    • Giles Peaker

      I’d broadly agree. However, it seems that the particulars mentioned 8 tenancies, but the prayer did not set out a specified sum. So it may also be that the pleaded case was not clear on extent of claim.

      Reply
  2. Michael Barnes

    S214(1)(a): it is my understanding that “or” in English is an inclusive or, not an exclusive or (i.e. at least one of the items, not exactly one).

    Reply
  3. Darren King

    This is an interesting case but I don’t understand the application of the 6 year limit. The Limitations Act specifically allows for the postponement of the limitation period where a deliberate commission of a breach of duty takes place in circumstances in which it is unlikely to be discovered for some time. Surely a tenant is most likely to become aware of the non-protection of their deposit at, or towards, the end of their tenancy and so the limitation period should run from when they became aware of it rather than from the date of the actual breach of duty. It is also very difficult to see how a landlord could claim that such a breach is anything other than a deliberate act. Maybe, as the claimant was unrepresented, he failed to make this point in court.

    Reply
    • Giles Peaker

      I very much doubt it was pleaded. However, I doubt it would work anyway. The requirement at s.32 Limitation Act 1980 is for fraud or deliberate concealment by the Defendant. That would require considerably more than just not protecting the deposit. I don’t think s.32(2) rescues the position either, as the claim was in part for failure to provide the prescribed information, which the tenant arguably should be aware of at the time – that was not concealed.

      Reply
  4. Darren King

    I can’t believe that this principle has never been properly established in court. The important bit is in s32(2).

    The LA 1980 s32(1) b allows for the postponement of the limitation period if ‘any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant’
    s32(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to a deliberate concealment of the facts involved in that breach of duty.

    A landlord can’t simply avoid the penalty by saying he didn’t deliberately fail to protect the deposit as this would amount to ignorance of the law, or honest mistake, being accepted as a legitimate defence. The decision not to protect must therefore be considered a deliberate commission of a breach of duty and, as it perfectly reasonable to accept that a tenant wouldn’t immediately discover that their deposit hadn’t been protected, this must surely amount to a deliberate concealment.

    I think the understanding of the word ‘or’ is possibly a bit fuzzy but as the prescribed information can’t be provided when the deposit isn’t protected it seems reasonable to to say that the plaintiff can claim against the landlord for either not protecting the deposit or for failing to issue the prescribed information but not both for the same breach of duty.

    Reply
    • Giles Peaker

      A breach is ‘likely to be discovered’ immediately where, as here, it includes not providing the prescribed information.

      Reply
  5. Darren King

    This assumes that the tenant knew that they should receive it. It must surely be difficult for the landlord to argue that the tenant should have been more ‘in the know’ about deposit protection law than the landlord was. If the Landlord can say he didn’t protect the deposit simply because he didn’t know he had to, then the tenant must be able apply for the limitation period to be postponed if he didn’t realise that he should have received the prescribed information. Surely this is why not supplying the information is also a penalty carrying offence. It can never have been the intention of the law to allow the worst offending landlords simply to get away with it after 6 years of being in breach of duty and this must be why the LA 1980 makes allowances for this type of situation.
    I believe that another part of the LA 1980 also offers postponement of the limitation period in situations where the plaintiff is at a disadvantage to the defendant in some way. eg A longterm tenant (of more than 6 years) may not want to start proceedings until the end of his tenancy for fear of facing a retaliatory eviction.

    Reply
    • Giles Peaker

      No, it doesn’t depend on the tenant’s actual state of knowledge. A breach which results in not providing the tenant with something that the tenant could or ought to know that they should receive is not ‘unlikely to be discovered’. Quite the reverse. Nor is the landlord’s state of knowledge relevant for limitation.

      6 years is the absolutely standard limitation on contract/statutory claims. There is no reason why deposit penalties should be different. It would be easy to make an argument for the unfairness of limitation on every kind of case, deposit cases are not special.

      There is no other postponement of limitation of the kind you suggest.

      Reply
  6. Darren King

    Once a tenant has paid their deposit and moved into a property they really aren’t likely to give it much thought again until they are in the process of moving out. Are you saying that, in the eyes of the law, the tenant is held to have a duty to investigate the workings of deposit protection law within days of moving in and then to identify any legal shortcomings in the behaviour of the landlord. What if the landlord said that the deposit would be protected and the tenant simply believed him? Does this not amount to ‘concealment’?

    Reply
    • Giles Peaker

      It does not depend on whether or not the tenant was actually aware of what they should receive. The test is whether the circumstances are such that the breach is unlikely to be discovered. A failure to provide the prescribed information is not a breach that is ‘unlikely to be discovered’ because it involves not providing the tenant with something that should have been provided. It is an overt breach.

      Reply
  7. Darren King

    I think we may end up going around in circles a little on this one.
    I concede that there is a difference between something being ‘unlikely to be discovered’ and it being ‘undiscoverable’. Clearly, it would be ‘possible’ for the tenant to discover that the landlord is in breach of his duty by reading up on deposit protection laws and processes and contacting all of the government approved schemes. However, the normal circumstances surrounding a rental deposit are that, once paid, it is unlikely to be thought of again by the tenant until the end of the tenancy, therefore making the landlords failure to protect it ‘unlikely to be discovered for some time’ especially if he has lied about doing so.
    How is the tenant to know that the prescribed information should arrive when there is no statutory requirement on the landlord, or anyone else for that matter, to tell him it would be sent? So something he isn’t expecting doesn’t arrive! I’m not sure that would ring alarm bells for me.
    I think you are putting too much onus on the tenant, who may not have the capacity to investigate and make judgements as to the landlords compliance with the law, to identify that the landlord is in breach of his duty.

    Reply
    • Giles Peaker

      No, not circles, as you are stuck on the tenant’s actual knowledge of the law, which is irrelevant. Ignorance of the law is an individual state, not true of all tenants, by a long shot. So, that cannot amount to ‘circumstances in which it is unlikely to be discovered for some time’.

      Look at it this way, the landlord couldn’t possibly know what the specific tenant knew or didn’t know about deposit rules, so it is not in effect concealment.

      Recall the How to Rent guide, which must also be provided, makes the requirement for the prescribed information clear, though that is not a vital factor.

      Reply
  8. Darren King

    Ok, straight lines with a brick wall at the end.
    It’s not that I’m stuck on the tenant’s knowledge of the law but I have been desperately racking my brain as to where, using your interpretation, s32(1) b / s32(2) could ever be applied. I can’t think of a single situation where, if the potential plaintiff had spent enough time, effort and money on investigation, it would have proved impossible for him to discover, within a very short space of time, a breach of duty, etc, against him.
    Out of curiosity, was the ‘How to Rent Guide’ available as long ago as 2009? Even if it was, just suppose that the same landlord who declined to protect a deposit had also failed to provide a guide to his tenant that could give a clue as to his possible breach of duty. Might that happen?
    I just find it depressingly disappointing that you are saying that there is absolutely no recourse to the law for a long term tenant who has been intentionally mislead by a rogue landlord who lied about protecting a deposit for a period of over 10 years. Basically, if you can maintain a lie for long enough, eventually you get away with it! I just don’t believe that the Limitations Act 1980 was designed to offer protection against prosecution for this class of landlord.

    Reply
    • Giles Peaker

      There are plenty of situations where it might apply. Even with deposits – imagine a landlord faked a deposit certificate.

      It isn’t about ‘time, effort and money on investigation’. Plenty of tenants were aware of deposit rules. And that, by itself, means that you are talking about the individual tenant’s state of knowledge.

      Look at limitation on tort/negligence claims. Where there is a ‘knowledge’ exception, that runs from when the claimant knew or ought reasonably have known that they had suffered a loss – not when they knew that had a cause of action, and not when that specific person knew, but when a reasonable person would have known.

      And limitation of 6 years means you can claim in respect of breaches within the 6 years prior to date of claim. So on your example, there would have to have been no renewal tenancies, or no statutory periodic arising within the last 6 years to avoid a penalty. You’ve also changed your example to being a landlord who had lied about protecting the deposit. That might be different – s.32(1)(b) – depending on what the landlord did. Active steps to hide the breach would be deliberate concealment. What you were arguing was the application of s.32(2) in a situation where the landlord had simply failed to protect the deposit. That is not workable, I think.

      Again limitation applies to all cases. It could be argued to be unfair in all cases (eg why does a tenant only get 6 years claim period for disrepair, when a leaseholder gets 12 years?). Deposits are not a special case and there is nothing to make them a special case.

      Reply
  9. Sara

    Have there been any other cases on the limitation point since this one? Presumably in the case of an AST starting over 7 going to renewal as a periodic tenancy a year later (over 6 years ago) the tenant would now be out of time to raise any claim or counterclaim in respect of deposit breaches? Do you agree that a Section 21 notice however still remains invalid unless the deposit is released? Under DPS if the tenant does not confirm acceptance of the deposit arguably it has not been returned to the tenant before issue of a S21. In these circumstances would you consider that a landlord is able to successfully issue S21 proceedings on the basis that the tenant cannot counterclaim for deposit breaches in light of expiry of the limitation period?
    If a deposit breach is still within the limitation period can a tenant counterclaim for deposit breaches in respect of any S8 proceedings raised by the landlord?

    Reply
  10. J

    Why is it a 6 year limitation period? Surely a deposit claim by a tenant (or ex-tenant) is an action on a specialty (i.e. a statute) and so has a 12 year limitation period?

    Reply
    • Giles Peaker

      6 years under section 9 Limitation Act? Sums recoverable by statute?

      Reply
      • Sara

        Thanks Giles
        Do you have any comment on the other issues re validity of S21 if deposit breaches out of time and whether a tenant can counterclaim for these in S8 or S21 proceedings? Is there any relevant case law on these issues?

        Reply
        • Giles Peaker

          Blimey – all of this is dealt with elsewhere on the site if you care to look. But…
          S.21 remains banned if deposit wasn’t protected, can’t be served until return of deposit, regardless of limitation (as limitation only applies to claims). (Different for failure to provide prescribed information, which can be provided late for a s.21, but is still a penalty breach, subject to limitation).
          Tenant can counterclaim for deposit penalty (if within limitation) in both s.21 and s.8 possession claims (if s.8 claim is for rent arrears and there is a defence of set off).
          There isn’t any case law on these specific issues because as far as I can see there is no argument about them.

      • J

        Collin v Duke of Westminster [1985] 2 W.L.R. 553? Is it a debt which is recoverable by statute (if so, then agree 6 years) or is it a cause of action which is created by statute (if so, then 12 years). I lean towards the latter.

        Reply
        • Giles Peaker

          Hmm. Interesting. Arguable either way, I think. One to watch out for.

    • Jenny

      Hi, I’ve just been reading all the comments on here. Perhaps MY case needs to be tested? I have been passed from pillar to post. Even solicitors cannot get the answer correct. My tenancy has been statutory periodic since 2011. All agreements, up until this date, mentioned the deposit was registered in a scheme.
      Section 21 issued this year, deposit protected with a different scheme, on the same date of the issue. Its just been discovered it was never protected anywhere prior to the sec21.
      This lay undiscoverable for well over 10 years and only discovered with information received from a scheme and NOT the landlord. Why? Because of false information on 4 TAs and no more information ever provided from 2011.
      Apparently I have no rights and passed 6 Yr limitation, regardless if I knew or not.
      Nobody can do anything = Landlord gets away with it

      Reply
      • Giles Peaker

        Hi Jenny

        Sounds fairly straightforward to me:

        1. If tenancy deposit not protected within 14 days (in 2011) of the start of the most recent tenancy, or when the tenancy became a statutory periodic then the s.21 notice is invalid unless the deposit was returned before the s.21 notice was served. From what you say, the section 21 notice served on you is invalid.

        2. If your tenancy went statutory periodic in 2011, then you are out of time for a deposit penalty claim on the failure to protect.

        3. As one of the prescribed requirements for deposit protection is that the tenant is provided with the deposit certificate, it wasn’t ‘undiscoverable’. Indeed, it is very possible to check whether a deposit has been registered with all of the schemes. You may well have been misled, but it wasn’t undiscoverable.

        4. If it is correct that the s.21 is invalid, your landlord can’t do anything about it without returning the deposit to you and then serving a fresh section 21.

        Reply
        • Jenny

          Hi Giles, when the tenancy went into periodic it was going by the earlier terms on the agreement dated 2010, no new signed agreement was ever issued after this date. Also, If no infornation was given on the original statement about the requirement to register with any scheme, within the ‘scheme details’ on the TA, no certificate issued at ANY time, could it not be argued that the knowledge of requiring to protect deposits within a scheme and all the law required with it as to rights, was therefore concealed by the landlord as to avoid and eventually be free from any penalties? This seems extremely unfair to all tenants who have been on long term periodic tenancies and are only made aware of the law when they are asked about the validity of section 21s issued. Due to previously ‘false information’ on their fixed term agreements they had no reason to question anything due to the law being correct at the time.?

        • Jenny

          I would also like to add that the responsibility of obtaining correct information shouldn’t be blamed on the tenant as the tenant was already in situ pre 2007, I.e, pre-DP legislation with the periodic rolling into pre-localisms act. If this is the case then the tenant is not at fault as they can’t possibly know anything unless the requirement to trigger is suggested by means of a section 21 OR the tenant is to be required to have SERIOUS knowledge of the law and all its updates?

        • Giles Peaker

          No, it doesn’t matter that the first tenancy was pre 2007. What matters were tenancy agreements entered into after 2007.

          It was always a requirement for the tenant to be provided with the prescribed information, from 2007 onwards. What the landlord did, on your account, was not correct in law at the time.

          If the landlord had provided you with a fake deposit certificate, there might, just might, have been an argument on fraudulent concealment, but this was apparently not the case.

          Ignorance of the law is not a defence for a landlord who failed to protect a deposit, but equally, I’m afraid, it is not a basis for a late claim by a tenant.

  11. Sara

    Thanks for clarifying Giles. As a valid S21 is dependant on return of the deposit which in the case of DPS is dependant on the Tenant accepting its return, theoretically it can never be open to the landlord to use after an initial deposit breach

    Reply
  12. Theo

    Has there – to your knowledge – been any judicial consideration of the principle that there is an award per tenancy as opposed to a single aware (of up to 3 x deposit) for a single application relating to multiple tenancies? (It is not clear to me whether it was argued in the above case that only one award ought to be made per application, regardless of a series of tenancies). I appreciate the point about the use of the singular ‘tenancy’ in s. 214, but the point seems to me to be properly arguable, in circumstances where there is (arguably) a single deposit which is simply rolled over a number of times in ‘renewal’ tenancies.

    Reply
      • Jenny

        So basically, there’s no way for a tenant to give rise to postponement of limitations at all? Would it never be considered that the overall date of 2015 to comply as per the deregulation act could be considered as the date of breach and not 30 days from the start of the periodic? Also, if deposits are considered to be the tenants money and the landlord still had it sat in his bank account, possibly with a load more, earning interest, could it be argued that either; 1, due to the landlord not complying, all interest earned belongs to the tenant as he’s holding it illegally, 2, the start date of the return of the deposit before issuing a section 21 would be the end of the 2015 date, 3, claim for that interest should be sought, if a deposit was still being held within 6 years of making the claim alongside the claim for the return of the deposit?

        Reply
        • Giles Peaker

          No. None of that.

          And the deposit isn’t being held ‘illegally’.

        • Jenny

          Apologies, “unlawfully” not “illegally” as I mentioned. Now all this confusion has led me to mix one issue with another on a different site. I quit before I get myself wrapped up in a straight jacket. Headache pills on the way Mr Peaker. Honestly though, you’ve been brilliant. Takes a special person to answer so many questions in short spaces of time. I’ve been a pain. Hahaha.

  13. Dave Keeley

    Can I get a transcript of Howard v Dalton ?

    Reply
  14. Darren King

    It does seem a bit of an anomaly that if a landlord breaks the law, and then continues to be in breach of the law for a period of 6 years without being discovered, that the crime disappears, and that the victim, who is still is a position of disadvantage, has no recourse. I am sure that UK law must be full of similar examples but I can’t believe that this type of situation was ever the intention of the limitations legislation.

    Reply
    • Jenny

      This is what I’ve been trying to understand too. Seems like there is a missing subsection just begging to be added somewhere in the Limitations act under contract claims. I can understand if it had been 6 years and the landlord had indeed cleaned up his act, but the intention of the deposit legislation was to stop rogue landlords. A landlord who carries on ignoring the law to his advantage by ways of reducing or escaping penalty, to me, suggests ROGUE.

      Reply
      • Giles Peaker

        There is still a penalty, the landlord cannot serve a s.21 until the deposit has been returned to the tenant. That is not time limited. The date of breach – that which gives the tenant a right to bring a penalty claim under s.214 Housing Act 2004 – is the date the landlord fails to comply with the deposit requirements – to protect and provide prescribed information within 14 days of receiving deposit (pre October 2015) or 30 days (post October 2015). It is not a continuing breach, it is at that specific point (for each tenancy).

        Actually, before October 2015, the landlord could have protected the deposit late and escaped a penalty anyway.

        Reply
        • Jenny

          So a failure to protect, let’s say, for arguments sake, on 10 renewal tenancies the breaches occurred. That non-time limited penalty is applied to all 10 breaches but the penalty only allows for a deposit to be paid back prior to the issue of section 21? Am I correct in reading that the landlord is not allowed to deduct anything other than rent arrears from that particular penalty? Wouldn’t that leave the door open to a later claim (if any) by the landlord, for any excessive payback of losses from damage or beyond wear and tear to items that should have been deductable (subject to restricted percentages) from the deposit?

        • Giles Peaker

          No, the non-time limited (s.21) penalty applies at all times that the deposit has not been correctly protected and prescribed information served. As far as the most recent tenancy goes, the s.21 penalty applies if the deposit was not correctly protected etc in respect of the current tenancy. (Ie, it doesn’t matter whether or not is was protected for previous tenancies, only for the one on which the landlord wants to serve a s.21 notice).

          In order to serve a s.21 the landlord has to repay the deposit. The landlord can seek to make deductions from the deposit for anything that the landlord would usually seek to make deductions (rent arears, property damage, whatever), but – and this is the crucial bit – the landlord can only make those deductions if the tenant agrees. Any tenant knowing that the landlord is returning the deposit just so that they can serve a s.21 notice would be foolish to agree any deductions at all.

    • Giles Peaker

      It isn’t an anomaly and it isn’t a crime. It also doesn’t ‘disappear’.

      6 years limitation is absolutely standard across most civil claims, and is less for personal injury. The ‘victim’ does have recourse as no section 21 notice can be served by the landlord until the deposit is returned to the tenant. That is not time limited.

      Reply
      • Jenny

        Thank you for clearing up a lot of confusion. Also there’s some ongoing confusion. As to the compliance again the date the deposit was first paid. Some are stuck giving advice like, if you first paid before 2007 and first renewal began before 2007 except for those turning period, then any notice served would still be valid. Being a long term tenant myself, I took this to mean everything was correct and it has taken many questions and answers from yourself and others to confirm what was true. Even citizens advice seem to think my notice is valid as they are going by when the deposit was first paid. I’ve had to correct them myself due to a little fact that I knew. Even though I was living here, my name didn’t was never on the tenancy until a few years later. Would a deposit breach be likely to be picked up if the Tenancy start date on a protection certificate was different to the start of the tenancy? And also, does a tenant have to defend in order for the judge to take action on non compliance?

        Reply
        • Giles Peaker

          Jenny, if the tenancy began before 2007, the deposit didn’t have to be protected at that point. It would have had to have been protected on any renewal tenancy after 2007. And in any event, even if there were no renewal tenancies, it would have had to have been protected before a section 21 notice was served – section 31 Deregulation Act 2015.

          It is up to the tenant to raise a breach of deposit requirements. Nobody else is going to somehow ‘pick up’ on it.

          All the date based variations are ste out here – https://nearlylegal.co.uk/2015/08/making-sense-of-deposits-nearly/

  15. Jenny

    Following on, if a landlord does seek to make deductions from a deposit that should be returned, and the TA mentions the deductions are made AFTER the tenant leaves the property. Would this cancel it out considering a section 21 could not be issued? Would they still be able to raise disputes?

    Reply
    • Giles Peaker

      After the tenant has left, they have lost their bargaining chip, so yes, will be a standard deposit dispute over deductions.

      Reply
      • Jenny

        OK thanks Giles. What does a landlord need to prove if they went for a possession order? Would a judge still grant the order if the tenant hasn’t raised an issue of late protection? Its my understanding a judge has to make sure all paperwork was in order and a tenant can only defend/counterclaim if they were given a section 8 for rent arrears.?

        Reply
        • Giles Peaker

          Jenny, we aren’t here to teach the basics of civil procedure. But , no if the landlord says the deposit was protected according to the rules, and it isn’t obvious that it wasn’t, it will be up to the tenant to put in a defence that the the s.21 isn’t valid. Judges are under a lot of time pressure and likely won’t catch the details by themselves, even assuming that they are apparent from the claim the landlord had put in.

          The tenant can defend a s.21 claim if the notice is invalid or defective. They can counterclaim for a deposit penalty, if there is such a counterclaim.

  16. Alan

    Hi Giles, very informative I must say. Can you provide some insight for me please? If a deposit was lost by the landlord but supposed to be held against subsequent tenancies, could it be seen as paid but not received on those following agreements? Does that affect the rules?

    Reply
    • Giles Peaker

      A landlord can’t ‘lose’ a deposit. They are holding the tenant’s money on trust. So if they have ‘misplaced’ it, they will still be treated as holding it. And yes, it would be taken as received afresh on each subsequent tenancy.

      Reply
      • Alan

        It’s a very complicated with periodic. On an AST it’s described within the tenancy what is expected during the ‘period’ But, on a rolling tenancy, its considered as a monthly or set period depending on contractual or statutory with no fixed end date. If the ‘period’ is monthly then the landlords responsibility should be every month he accepts the rent at the start of each month for that upcoming period and therefore classed as a breach of duty if he doesn’t comply within a particular month. With a deposit, its held over for each month or particular period that the continuing tenancy states. I suppose you could say ‘mini tenancies’

        Reply
        • Giles Peaker

          No, a statutory periodic is a single tenancy, however long it goes on. A contractual periodic is a single tenancy and, depending on the wording of the agreement, simply be a continuation of the fixed term as the same tenancy.

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