Case Summary
On 14 June 2013, Lord Justice Lloyd delivered his Judgment on Appeal from Wandsworth County Court. The case involved Mr Marino Rodrigues, who took an assured shorthold tenancy of a property from Superstrike Limited on 8th January 2007. The assured shorthold tenancy was for a fixed term of one year, less one day, at a monthly rent of £606.66. At the time of entering into the assured shorthold tenancy, Mr Rodrigues paid a deposit of £606.66 to Superstrike Limited. As the assured shorthold tenancy was granted before the tenancy deposit protection schemes were introduced on 6 April 2007, Superstrike Limited was not required to register the deposit in an authorised scheme at that time.
The fixed term of the assured shorthold tenancy came to an end in January 2008, at which time, due to the effect of Section 5 of the Housing Act 1988, Mr Rodrigues became entitled to a statutory periodic tenancy on equivalent terms. The deposit paid by Mr Rodrigues under the original assured shorthold tenancy was not returned to him, nor was there any discussion between the parties concerning it.
On 22 June 2011, Superstrike served Mr Rodrigues with notice pursuant to Section 21 of the Housing Act 1988, requiring him to deliver up vacant possession of the property. Possession proceedings were commenced by Superstrike upon expiry of the Section 21 Notice. These proceedings were defended by Mr Rodrigues on the basis that Superstrike had failed to protect the deposit paid, by not placing it into an authorised scheme pursuant to the provisions of the Housing Act 2004. On 8 May 2012, a possession order was made in Superstrike's favour. This was later set aside on 26 June 2012 by Deputy District Judge Whiteley, on the grounds that Superstrike had failed to protect the deposit in an authorised deposit scheme. Superstrike appealed this decision.
On Appeal, the key question for the Court to answer was, given that the deposit was paid by Mr Rodrigues to Superstrike prior to the Housing Act 2004 coming into force (on 6 April 2007), was there an obligation on Superstrike to protect the deposit when the statutory periodic tenancy was created?
Mr Rodrigues argued that a new tenancy (the statutory periodic tenancy) had been created in January 2008, when the fixed term of the original assured shorthold tenancy expired. Due to the creation of a new tenancy, the parties had to regard the deposit paid in respect of the original tenancy as being "paid" and "received" in respect of the new periodic tenancy, on the date it came into being. If this was not the case, the deposit held could only have been held as security for obligations and liabilities Mr Rodrigues had under the fixed period of the original assured shorthold tenancy, which was plainly not the position. Due to this, it was reasoned that Section 213 of the Housing Act 2004 applied, requiring Superstrike to place the deposit within an authorised scheme and provide Mr Rodrigues with prescribed information concerning the scheme, within 14 days. [NB, This period has subsequently been amended to 30 days by the Localism Act 2011, with took effect on 6 April 2012.]
It was common ground that Superstrike had not performed any of the obligations set out in Section 213 of the Housing Act 2004. Further, and crucially, Mr Rodrigues claimed that Superstrike's omission invoked the sanctions for non-compliance, contained within Section 215(1) of the Housing Act 2004. If true, this rendered the Section 21 Notice served on Mr Rodrigues invalid.
Superstrike, however, argued that Section 213 of the Housing Act 2004 did not apply to this situation because the deposit had not been physically "paid" or "received" by Superstrike after 6 April 2007, i.e. it had not been paid by cash, cheque, bank transfer or in some other comparable way. It was claimed that, if Mr Rodrigues' position was correct, many private Landlords would have been caught unknowingly by the need to comply with Section 213 of the Housing Act 2004, on the expiry of a fixed term assured shorthold tenancy, (if the tenant remained in occupation under a statutory periodic tenancy created after 6 April 2007). It was also argued that there were no transitional provisions in the Housing Act 2004, or in the commencement order dealing with this point.
Superstrike's arguments were rejected by the Court. Lord Justice Lloyd found that Mr Rodrigues "paid" and Superstrike "received", the sum of £606.66 by way of a deposit when the statutory periodic tenancy was created in January 2008. On this basis, the obligations placed on a Landlord under Section 213 of the Housing Act 2004 applied to Superstrike at that point. In breach of these obligations, Superstrike had failed to place the deposit into an authorised scheme and had failed to provide Mr Rodrigues with the prescribed information in respect of the chosen scheme. Section 215(1) of the Housing Act 2004 therefore applied, rendering the Section 21 Notice served invalid.
Implications of the Court's Decision
Following this decision, a Landlord is required to protect all deposits received in respect of tenancies which commenced before 6 April 2007, if they subsequently became statutory periodic tenancies after 6 April 2007, in an authorised scheme. Landlords are also required to provide a Tenant with the prescribed information in respect of the chosen scheme. If this is not done, a Section 21 Notice served by the Landlord will be rendered invalid.
Lord Justice Lloyd highlighted (albeit obiter) that due to the changes made by the Localism Act 2011 to Section 215(1) of the Housing Act, whilst it is possible to remedy a failure to provide the prescribed information, by subsequently serving it on the tenant, it did not appear possible to remedy a failure to protect a deposit within an authorised scheme within the required 30 day period. The implications of this are that the only way a Landlord can escape the sanctions under Section 215(1) of the Housing Act 2004, preventing service of a valid Section 21 Notice, is to return the deposit to the tenant. Lord Justice Lloyd was however at pains to stress that he was not making a finding on this issue. Instead Lord Justice Lloyd deliberately reserved judgment in respect of this point, leaving it to be decided upon in a future case, which turned directly on this issue.
This decision is wholly unsatisfactory for Landlords who took deposits in respect of assured shorthold tenancies entered into pre-April 2007, which subsequently became statutory periodic tenancies after 6 April 2007. On a strict interpretation of Section 215(1) of the Housing Act, it appears insufficient for a Landlord to show an intention to comply with Section 213 of the Housing Act 2004, by placing a deposit into an authorised scheme late. As mooted by Lord Justice Lloyd, it is somewhat doubtful that anything other than returning a deposit, which has not been protected, would be sufficient to enable a Landlord to serve a valid Section 21 Notice. In cases where tenants are in substantial rent arrears, or have caused damage to a property, a Landlord will be reluctant to deliver back its only security.
Landlords can take some limited comfort, in that any Section 8 Notice served on a tenant, where a tenant is in default, will be valid and enforceable, notwithstanding a Landlords failure to comply with Section 213 of the Housing Act 2004. The problem then is satisfying the grounds for possession and convincing the Court to both grant possession and follow it through with a warrant.
The real impact of this case remains to be seen. If this case is subsequently appealed, as has been mooted, the Supreme Court may go further than the findings made in this case and clarify this difficult and politically charged area once and for all.
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