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TDP again!!

A recent judgement in Clerkenwell & Shoreditch County Court has clarified another issue relating to Tenancy Deposit Protection. HHJ Cryan has indicated that as far as he is concerned a deposit taken for a tenancy which began prior to the intorduction of TDP on 6 April 2007 does not have to be protected but that when the tenancy is renewed the deposit is, in effect, taken again and must therefore be protected from that point. This was a well accepted interpretation of the position but it is nice to see confirmation. It must of course be noted that this decision is not one of record and is not, therefore binding on other Courts.

Unfortunately, this opens up another possible problem. It is widely believed that a tenancy that becomes periodic under the aegis of s5 Housing Act 1988 does not need its deposit protecting. However, s5 states that the periodic tenancy is arises immediately the fixed term tenancy ends and it therefore seems to be thae case that this is a new tenancy just as much as any renewed tenancy. One wonders when this point will be raised and what the outcome will be. In the meantime the rule must be that if there is any doubt then the deposit should be protected.

With thanks to James Browne, Lamb Chambers

3 Comments

  • Francis Davey 22nd April 2009 at 11:37 am

    My view (which I am sure you know well) is that the plain words of the act, read literally, required that AST deposits be held in accordance with the scheme regardless of the date when the AST came into being (before/after the act) but that certain of the duties such as notification to the tenant only occur on *receipt* of the deposit.

    I seem to be the only person who thinks this. The problem is that any other interpretation naturally creates difficulties. Courts trying to make sure that renewed tenancies are protected by reading into the act what is not there risk causing exactly the difficulty you note with statutory periodic tenancies.

    Eventually there will be no “old” AST’s to worry about but the question of renewing tenancies will come up time and again. Let us hope that the courts do not become unreasonably muddled about this.

  • Kelly Bushby 8th June 2009 at 12:54 pm

    Can you provide details of the case name please?

  • PainSmith 17th June 2009 at 11:11 am

    @Kelly. The case was Coutinho v Atkinson.

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