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Some More Tenancy Deposit Cases

Looking through the latest edition of Legal Action there are two cases on tenancy deposits. These are County Court cases and so not binding but they are of interest.

In O’Brien v Jones, Northampton County Court, 12 February 2010 it was claimed by the tenant that teh landlord had failed to provide the full information prescribed by the Housing (Tenancy Deposits) (Prescribed Information) Order 2007. Specifically, the landlord had not provided her address and telephone number. However, the agent’s address and telephone number were provided on other documents. DJ Watson found that this was sufficient and that, in any event, the situation had been remedied prior to the hearing. This does address one remaining area of uncertainty as there has been no clear decision on whether the prescribed information does actually require the provision of the landlord’s address and telephone number or whether providing the agent’s details is enough. Understandably many landlords who are spending money on a managing agent are reluctant to give their personal details to the tenant on the basis that they do not want to deal with them. It seems that DJ Watson agrees that the agent’s details are sufficient.

In Baafi v Mapp, Central London County Court, 24 June 2010 the landlord had registered the deposit with MyDeposits. He had failed to properly appreciate that the MyDeposits scheme does not and cannot provide all the information required by the Prescribed information Order. In particular, MyDeposits makes clear on its certificate that it does not tell the tenant what to do at the end of the tenancy if the landlord or agent cannot be contacted and also does not explain what things the landlord will retain the tenancy deposit against. MyDeposits expects these items to be dealt with in the tenancy agreement. It should be noted here that DPS does much the same thing. The landlord was using a tenancy agreement which the Court described as ‘archaic’ which did not clear up these areas. On appeal the tenant was awarded the usual three times the deposit penalty and the landlord’s claim for possession based on a section 21 notice was dismissed as the notice could not be relied on until all the proper information had been given to the tenant.

Tenants should note that PainSmith solicitors is now operating a “no win, no fee” service for tenants whose tenancies have ended and whose landlords have not properly protected their deposits. Contact us for more details.

Since this blog, a large number of court judgements have had a significant impact on the legislation surrounding the protection of tenants’ deposits. Consequently, we are no longer in a position to offer the ‘no win, no fee’ service.

10 Comments

  • Peter Smith 7th August 2010 at 8:00 pm

    The Baafi v Mapp case reveals a frightening and unfair situation. It is possible that almost all landlords are falling short here. Users of any of the Government authorised schemes have a right to expect that the Tenants Information sheet contains all the necessary information. If they are neither supplying everything necessary nor warning that they are not providing it, then they must be failing their normal duty of care. Indeed they are putting their customers in great danger. I hope that Mapp sues MyDeposits for his loss.

    I am surprised that this report did not include a appeal decision at Cardiff Circuit Court on June 30th in which I was involved. Llewellyn S. QC ruled that if there was no longer “a person who appeared to the court to be holding the deposit” [S.214 (3)]then no order could be made against them for deposit or 3x penalty. In this case the deposit (unprotected) had been used to cover the final month’s rent when the tenant died in the premises.

    A full report can be found at http://www.consumeractiongroup.co.uk/forum/showthread.php?244224-Tenancy-Deposit-Protection-First-High-Court-Decision/page6

    • PainSmith 7th August 2010 at 10:16 pm

      There is simply no case against MyDeposits here. They make their position very clear in their terms of business and on the protection certificate. The real message is that all landlords should take responsibility for their own deposit and not rely on any other party to protect it for them.

      Legal Action will only report cases in the County Courts if they are submitted to them. Therefore if you did not submit your case then it will not be reported by them.

      We will not report this case as the decision is manifestly wrong in law. The obligation to protect the deposit arises when it is received. To use the money elsewhere does not end that responsibility or free the landlord from liability for failing to protect it.

  • Peter Smith 7th August 2010 at 8:07 pm

    I should have added “post 116)

  • Stephen O'Neill 8th August 2010 at 1:41 pm

    Chapter 4 of the 2004 Act is concerned with housing. Chapter 4 of Part 6 makes arrangements for securing that tenancy deposit schemes are available for the purpose of safeguarding tenancy deposits paid in connection with shorthold tenancies, provide for any tenancy deposit to be dealt with in accordance with an authorised scheme; delineate the duties of landlords in those circumstances; and provide for sanctions in cases of non-compliance. Landlords who describe a deposit as something else, who do not secure it promptly in a deposit scheme, then shout about unfairness when faced with a sanction are clearly flouting the spirit of the legislation and, in my view, the letter also. If the s213 and s214 remedies are not applied in a case such as the instant one, the Act would be rendered virtually toothless when landlords flout its provisions. To argue that a landlord can spend a tenant’s deposit then claim to have nothing is a nonsense.

    It is good to see Painsmith operating a no win no fee service for tenants. Despite the significant effort put in by advice centres with the enthusiastic help and support of publicly funded practitioners, a number of tenants (as the Cardiff case mentioned above) would wrongly loose their deposits without such a service.

  • Simon Parrott 10th August 2010 at 12:15 pm

    I was interested to see your report of the O’Brien and Jones case. I acted for the landlord and agent in that matter. Unfortunately the legal action report is slightly misleading. I don’t know how it came to be reported because this was not something which either the landlord or the agent pursued.

    Aside from your point (which is correctly reported) that the District Judge found against the tenant’s argument that she had not received the landlord’s name and address, the case is more notable because the tenant was awarded the deposit penalty as a result of failure of the tenancy agreement to include the TDS “G” clauses that are required by the TDS rules. This was despite the fact that the tenant was given a TDS explanation leaflet which contained much the same information. The DJ found that this failure to include the “G” clauses in the tenancy agreement was a failure to comply with the initial requirement of the scheme and accordingly engaged s214(1)(a) of the act.The problem here was that the agent, not having included the “G” clauses in its tenancy agreement, had no way of remedying the situation post event, since this would have required the agreement of the tenant to amending the contract.

    Kind regards.

    Simon Parrott

    • PainSmith 10th August 2010 at 12:37 pm

      Simon,

      Thank you for providing more information. This is not all that surprising a decision as TDS specifies its initial requirements within its rules (Document TDS A, rule 8.2) and has done so since December 2008. These requirements include the incorporation of document TDS G within the tenancy agreement.

  • David Howell 7th September 2010 at 11:10 am

    Can someone please give input on the folowing please:

    The landlord has registered the deposit with a registered scheme but has not served notice to the tennant with all the details and tenants rights booklets. The Landlord has shown the certificate as evidence in Court claiming to serve notice to the tenant at the same time. (The tenant categorically denies receipt of this!) The certificate contains a space for the tenants acknowledgement but has clearly not been signed. Indeed it can be proven that although the landlord has 1000’s of properties no one has been served with notice of the deposits. Where does the tenant stand regarding their rights???? My thoughts are that even though the deposit has been registered, by virtue of the fact that the tenant is unaware of any of the details and more importantly the claims procedure surely he is no better off than before this legislature was introduced. What are your thoughts?
    I would be most grateful for any input/views you have on this.

    • PainSmith 8th September 2010 at 11:40 am

      If the tenant has not had the prescribed information then the landlord is liable for the usual penalty. The landlord must sign the prescribed information so if the landlord’s evidence shows an unsigned version then this is bad for them.

  • David Howell 10th September 2010 at 2:29 pm

    The Solicitors acting for the Landlord are saying that the Landlord is protected in this instance under the statute Harvey Vs Bamforth 2008. I dont agree as this was 1 judges opinion which caused controversies post hearing. Not sure of any recent cases covering the same situation…… are you aware of any?

    • PainSmith 10th September 2010 at 2:39 pm

      Harvey v Bamforth has to do with late registration of deposits. It has nothing to do with service of the prescribed in formation. The case of Baafi v Mapp reported in the post above applies here.

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