Sanghera v Osagiede & Osagiede. Dartford County Court. 23 November 2023. (Unreported elsewhere. We were sent a copy of the judgment, which is here.)

This was a County Court appeal  to a Circuit Judge of a possession order made by a Deputy District Judge. The issue on the appeal was whether the DDJ had correctly made a possession order based upon a section 21 notice given the issues raised by the tenant on the provision of the How to Rent guide.

The claim form N5B had stated that the then current version of the How to Rent guide had been provided to the tenants on 19 June 2019 – the start of the tenancy. A copy of the How to Rent guide with a certificate of service was attached to the claim form, saying that the Guide had been served by the landlord’s agent by hand on 19 June 2019. There was also the tenants’ signature on the last page of the tenancy acknowledging receipt of a number of documents, including one described as a How to Rent guide.

The problem for the Claimant landlord was the version of the guide that was attached to the claim form. THis was dated, on page 2, as May 2019. But…

As long term readers may recall, there were a flurry of changes to the How to Rent guide between 31 May 2019 and 29 July 2019. The history is set out on our How to Rent Guide archive page, but in short

The How to Rent guide was amended on 31st May 2019 to include a reference to the Tenant Fees Act 2019, parts of which came into force on 1st June 2019.

The How to Rent guide was further amended on 3rd June 2019 to correct the name of one of the professional bodies which accredits letting agents.

The How to Rent guide was then altered again on 29th July 2019. The alteration was to page 4. The previous version which was current until then contained a final paragraph which ended by saying: “You can ask Shelter for help”. From 29th July 2019, that sentence in the How to Rent guide instead read: “You can ask Shelter for advice”.

The version of the guide attached to the claim form was the 29 July 2019 one. This could not possibly have been given on 19 June 2019.

In the initial claim, the landlord’s agent had made a witness statement which

referred to the acknowledgement receipt on the tenancy agreement and he said: “The defendants are put to very strict proof they didn’t receive a copy of the How to Rent guide as alleged, given that the evidence clearly suggests otherwise. For the avoidance of doubt, I also confirm that the How to Rent guide provided to the defendants was in fact the then current 2019 version”

But this did not clear up which of the four different 2019 versions was being referred to.

There was also an email from the agents to the tenants on 28 August 2019, attaching a copy of the 29 July 2019 guide and stating “Due to the tenants fee laws changing as of 1st June this year, please find attached a copy of the updated version of the How to Rent document”.

The problem for the Claimant landlord was therefore that there was no evidence that the then current version of the How to Rent guide had been given to the tenants. The version attached to the claim and attested to by a statement of truth was obviously not correct. The version provided by email didn’t count, as the Guide had to be provided in hard copy unless there was express agreement otherwise and nothing in the tenancy agreement allowed for service by email.

The agent’s

witness statement, in my view, is of no assistance to the claimant. The inaccuracy in the particulars of claim raises real concerns about the reliability of what is said by and on behalf of the claimant. Mr Stone does nothing to allay those concerns, but just makes a general assertion that was provided was the current version – indeed, by saying so he betrays a lack of understanding of whether there was more than one current version in 2019.

Then there is the email of August 2019. That is an interesting document. The stated reason why that email was sent is that the tenant fee law changed on 1st June. The sender of the email appears to have thought that the tenant had not received a copy of the How to Rent document which dealt with the new Tenant Fees Act, which came into force on that date. If that is right, it would mean that all the defendants had received would have been a version of How to Rent which preceded 31st May – because from 31st May the How to Rent guide did talk about the Tenant Fees Act. The email thus suggests that the sender, Ms Parkes of the claimant’s letting agents, considered the tenants had not received the then current version on 19th June 2019.

So the claimant had not established that the then current Guide was served on the tenant, on 19 June 2019 or subsequently. Possession order set aide and possession claim dismissed.

Comment

Oh dear, oh dear.  As we said at the time:

Since 31 May 2019, there have been two ‘silent’ changes to the guide – hidden by MHCLG and still both billed as ‘v.4’. MHCLG really shouldn’t do this, given the significance of the document. The gov.uk page still says last updated 31 May 2019.

The current ‘How to rent’ guide pdf remains dated ‘May 2019’ at the bottom. This may well be a cause of confusion, for example for tenants thinking they have not received the latest version. Unfortunately, the only way to check is to look at the text on page 4 and 5 to see if it includes the two changes.

But MHCLG do not make archive copies of the How to Rent guide available. It is, to the best of my knowledge, only this site and, I gather, the NRLA, that archive copies and that is the only way to check the textual changes between versions, which is, of course, vital when MHCLG don’t actually change the date (!!!) on the changed documents, as happened in 2019.

But there we are, it is a statutorily prescribed document, which must be served before a section 21 notice. The simple answer to the position this landlord ended up in is to serve (not by email) a further copy of the most recent How to Rent guide prior to serving a section 21. There is no requirement for it to be given at the start of the tenancy (though it should have been) for a section 21 to be valid.

Of course, all of this may well become academic before too long, but it has not been an edifying saga.