11/01/2020

Tenancy deposit – unserved prescribed information

Liaw v Sohal. Central London County Court, 10 January 2019. (unreported elsewhere, we’ve seen the approved judgment).

A county court first instance deposit claim decision, but with elements of interest and broader relevance (as well as some lessons to landlords as to how not to conduct a case.)

Ms Liaw was granted an assured shorthold tenancy of a central London flat by Ms Amrit Sohal beginning 2 October 2013, with a 12 month term. A deposit of £2100 was paid by Ms L to Ms S.

Ms L left the tenancy on 1 October 2016. Ms S did not return the deposit. Nor did she take it to the deposit scheme arbitration. Ms L – supported by University of London Private Housing and Advice Services (for transparency, my firm does advice work for UoL HAS) – brought a claim for a) return of the deposit, and b) penalty for failure to provide the prescribed information for the original tenancy and for two subsequent renewal tenancies, each of a 12 month term.

Ms S defended on the basis that the prescribed information had been served within 30 days on the first tenancy, and that there were no renewal tenancies, only a statutory periodic tenancy. Ms S counterclaimed for rent loss for tenant’s short notice, council tax after the tenant had moved out, repair costs and ‘administration and time costs’.

Ms S’ defence on sending the prescribed information did not succeed. A purported letter of 25 October 2013 was not accepted as genuine. As the District Judge put it:

I am very concerned that given no original can be produced, there has been some attempt to impose Ms Liaw’s signature on this letter, which can only have been done by Ms Sohal, given I am confident Ms Liaw never received this letter, nor the prescribed information said to be contained within it. I am fairly certain in my findings in that regard, because even up until lunchtime today, Ms Sohal was not in a position to even begin to demonstrate to this court, evidence of the tenancy deposit certificate. It was only because I asked her over lunchtime to contact them and to actually produce the evidence that I have finally seen the same.

The deposit was protected, but the prescribed information was not served in 2013, in breach of s.213 Housing Act 2004.

On Ms S argument that the tenancy had simply continued as a statutory periodic after the initial term, there was clear evidence that Ms S had sent renewal agreements to Ms L, and that Ms L had paid the advance rent according to those agreements, and:

Although Ms Sohal tells me today that there has to be a signed tenancy document in order for it to be a renewed fixed term tenancy, this is not correct. It is quite often a method used particularly by letting agents to renew agreements by either using the form of a memorandum or in this case, which is much clearer, a renewal agreement.

It is clear from the exchange of correspondence that took place between the claimant and the defendant, particularly regarding the second renewal, that even though no signature is on the renewal agreement itself, the term and the rent and the six months’ clause break is clearly set out and agreed. This is particularly the case when one considers that Ms Liaw then immediately pays the rent that is due and owing.

The court found that there had been two renewal tenancies.

On Ms L’s claim for return of the deposit, and for the penalty claims for 3 tenancies:

On each occasion, a tenancy for a 12 month term had been entered into.

On each occasion, Ms S was under an obligation to serve the prescribed information, given that she had not done so on the first occasion and so the Deregulation Act amendments to Housing Act 2004 did not apply.

Therefore a penalty must be awarded for each occasion. Ms S was aware of her obligations, having let the property several times prior to the letting to Ms L. However, she had actually protected the deposit. On that basis:

I award to Ms Liaw the return of the deposit of £2,100 and in light of my concerns as to the manner in which the alleged notice of 25 October 2013 has been presented to this court, I award two times the return of the deposit on three occasions as damages to Ms Liaw.

Therefore, that is £4,200 multiplied by three. Therefore, Ms Sohal that makes £12,600 plus £2,100

On Ms S’ counterclaim:

On Ms S contention that Ms L had not given adequate notice at the end of the last tenancy and that two months notice was required, the court noted that the tenancy agreement made clear that two months notice was required for the exercise of the break clause and expressly said:

It is not a requirement upon the tenant to give notice when a fixed term tenancy is in place and which naturally comes to an end on the last day of the stated period.

So, a weeks’ notice at the end of the fixed term was not in breach of tenancy, and the claim for council tax and rent were dismissed.

There was no legal basis for the claim in disbursements and time. This was dismissed.

The Scott Schedule on claimed repairs was largely for items of fair wear and tear, which were not claimable, or had already existed, given the photographic evidence at the start and end of the tenancy. A claimed sum of £575 paid in cash to ‘a gentleman’ did not correspond with the invoice present in evidence.

Some labour costs were allowed for dealing with the purchase of a hosepipe and mixer tap, amounting to £140. This was the total allowed on the counterclaim.

Court fees and photocopying costs to Ms L.

Comment

We have seen that the ‘multiple tenancy’ claim has been an issue at times, with conflicting views, but District Judge Wilkinson has no hesitation here, and I think quite rightly. It would be helpful to have a Circuit Judge’ view on an appeal, and more helpful yet to have higher court authority. But given that most of these cases have at least one, if not both parties in person, that may be a long wait.

For defendant landlords, the point to remember is that these days, the tenant will almost certainly have kept all the emails and messages, and their own dated photos. Don’t make stuff up…

In this instance, the landlord (acting in person) attempted in cross examination to suggest that the tenant’s documents were not truthful

In particular, the manner in which she began to make allegations against Ms Liaw as to her truthfulness, only for them to be retracted once Ms Liaw could demonstrate that photographs had been taken when they were stated to have been taken. In addition, emails had been sent when they were said to have been sent and that attachments certainly were attached to emails, as was evidenced by Ms Liaw’s mobile phone, when I could be absolutely certain that she had returned renewal tenancy documents to the defendant.

So, landlords, if you did breach the deposit rules, and you know you did, try to come to a quick settlement with the tenant rather than bluff your way out of it, no matter what you think about the fairness of the situation. It is unlikely to work at trial, and will cost you much more.

 

 

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.

15 Comments

    • Giles Peaker

      I know… I was thinking appeal on the point.

      Reply
      • Max R

        Sadly this message had not reached the deputy District Judge in my case. No prescribed information for an initial and following stututory periodic tenancy and the Judge determined it was a single breach.

        Reply
        • Giles Peaker

          It really needs higher court authority.

  1. Michael Barnes

    If “settlement” is reached, then what is to prevent a tenant later going to court to seek more?

    Reply
    • Giles Peaker

      Because a term of the settlement would be that they don’t bring a claim.

      Reply
  2. Mick

    Surely the judge was a bit generous in deciding that a notice to quit by the tenant of one week was sufficient. The Protection From Eviction At 1977, section 5(1) requires at least 4 weeks’ notice.

    Reply
    • Giles Peaker

      Was within/at end of fixed term. Contractual notice period specified, as I understand it.

      This was in a ‘special tenancy condition’:

      It is not a requirement upon the tenant to give notice when a fixed term tenancy is in place and which naturally comes to an end on the last day of the stated period’.

      Landlord’s contract, so rather hosit on their own petard.

      Reply
  3. Tom

    It could have been worse the judge could have awarded three times the deposit

    Reply
  4. David

    I think the law is quite clear and they were lucky not to get 3x per tenancy, there is no excuse, this legislation has been around for a long time now.

    First of all Deregulation says subsequent tenancies only deemed as complied if requirements fully complied with.

    Second, how can a Judge not fully punish a defendant who appears to have tried to present fake evidence which is what seems to be implied here.

    As far as Howard v Dalton is concerned, the issue was a penalty for both PI AND failure to protect on the same tenancy, when the correct way to interpret it is what triggers the a sanction requirement and then how to apply for each tenancy, then once triggered how grave is the failure.

    In my experience a failure exceeding one year or just before an S21 will trigger 3x the deposit because there was ample opportunity to protect and for all of that time the tenant did not have the protection required by the legislation. This is especially true on a renewal whether by contract or SPT. A failed or invalid PI contained in a tenancy agreement will tend to generate 1x if novice or 2x if deposit properly protected but PI not served. Again the Prescribed Information legislation was created because Landlords were failing to comply with the law.

    The overriding advice here is good, SETTLE SETTLE SETTLE and for Micheal Barnes comment, always put settlement in a short settlement agreement stating full and and final settlement of all matters between the parties. Do this early to avoid the claim firms because some of them certainly need to come under the claims regulator..

    Reply
    • M

      “A failed or invalid PI contained in a tenancy agreement will tend to generate 1x if novice or 2x if deposit properly protected but PI not served” Are there any publicity available records of cases where a penalty of 2 x deposit was applied for a protected deposit but no/invalid PI? I am doing some research on the subject and have been searching on Bailii but not been able to find any as yet

      Reply
  5. M

    sorry – meant to say publicly available records!

    Reply
  6. David

    M. A fail is a fail, you will not find many deposit cases on Bailii except the big ones like Gladehurst, Superstrike etc that moved all the goal posts and led to Deregulation Act, you also need to be careful because historic decisions may have been made while legislation was not where it is now.

    There is the case of OKADIGBO vs CHAN, which was really about whether the Judge had the discretion to make their own decision about how much to award.

    “The tenancy agreement commenced on 1 August 2012 and the deposit was required to be protected within 30 days thereafter; that is by 31 August 2012.

    The respondents admitted liability for the breach of that requirement and were therefore liable for a mandatory penalty payment. In fact, the deposit was protected before the tenancy came to an end, but not until 5 March 2013, and the relevant information was provided on 8 July 2013. However, both of those things were done late..”

    In my experience there are aspects that determine the gravity, the time unprotected, how quickly a Landlord protects it once they realise it was not done.

    I can tell you they do not look favourably when it was protected just before an S21 and also that incomplete PI (either by way of a Form from Deposit Protection company or as Information in the Tenancy) WHERE the deposit has not been protected on time can be frowned upon. I have seen these deemed void because the deposit had not been protected.

    The other factor for mitigation also at core of OKADIGBO vs CHAN which is a Landlord being Novice and/or relying on a professional, thus it follows if a Landlord is not a novice or did not rely on an agent (who had contracted to protect via a full service agreement for example) then they might struggle to plead mitigation on those grounds.

    To be honest at County Court level it is always going to depend on the Judge, the parties and their conduct, Judges have the discretion and many just want to minimise Court time for something that could and should have not got that far. The law is clear, a fail is a fail, the Courts have better things to do than waste time on parties who decline to negotiate in the hope that they will get more/less by going to Court.

    “In exercising her discretion under the Act as amended in that way the judge said this at paragraph 18 of her judgment:

    “Finally, the Defendant seeks a penalty pursuant to Sections 213 to 215 of the Housing Act 2004. Section 214(4) provides that in the event of a breach, and here the breach is admitted, I must award the Defendant a sum of money not less than the amount of the deposit and not more than three times the deposit. The Defendant contends for the maximum sum which would be three times £1,520, a sum of £4,560. The Claimant contends for one month’s rent in the sum of £1,520. I find that the Claimants are not experienced landlords, that this is the first time that they had let out any property and that they were letting out their home. That they quite properly put the matter in the hands of professional managing agents who let them down by not complying with the terms of the Act. I find this case to be at the lowest end of the scale of culpability for non-compliance. And for those reasons I award the sum of £1,520.”

    Wellings for the appellants says that this was a wrong exercise of discretion. He submits that the lack of experience as landlords to which the judge referred and the fact that they put the matter in the hands of agents were matters of little weight when set against what he described as a serious failure to comply with the requirements of the Act for a considerable period of time. He recognised realistically that there was a degree of mitigation in that the breach had been admitted and that there was in the event full compliance, albeit only after a period of delay. He contended that the discretion of the judge should, therefore, be set aside and that the appropriate order would be a multiple of twice the appropriate amount of rent.

    In my judgment, however, the judge was entitled to regard the question of culpability as the most relevant factor in determining what order to make and was entitled to find that the culpability in this case fell at the lowest end of the scale for the reasons which she gave. It is not as if the breach was uncorrected and therefore, although the appellants were lacking the protection for a period of some months, in the end matters were put right”

    Reply

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