Agents are reminded that – in what is being called the return of Superstrike – it is vital to re-serve prescribed information when a fixed term tenancy becomes statutory periodic.
In a recent case at Birmingham County Court, Gardner v McClusker, the landlord lost out to the tune of £1,800 plus costs.
The landlord had taken a £600 deposit and protected it (with MyDeposits) but not served the prescribed information when the tenancy became statutory period, and had then served a Section 21 notice.
At that point, the tenant served a counter-claim, arguing that no prescribed information had been served when the tenancy became statutory periodic. The landlord tried to rely on the originally served prescribed information, but the court rejected this argument.
The court ruled that the Section 21 notice was invalid. It ordered that the deposit be returned to the tenant and damages of twice the value of the deposit be paid to the tenant. The landlord was also told to pay costs.
The decision is in line with the earlier Superstrike v Rodriguez case, which ruled that when a fixed term tenancy ends and the tenant remains on a statutory periodic tenancy, then a new tenancy is created.
There is a helpful blog here:
http://nearlylegal.co.uk/blog/2014/05/the-tenant-superstrikes-back/
Whatever happened to Industry Observer? we used to be able to rely on him for detailed/ informed comment on this stuff.
What isn't clear is which Section 21 notice was served; 21 (4) (A) for a periodic tenancy or a 21 (1) (B) for a fixed term and whether the Section notice was the invalid simply because the agent had used the wrong one.
The intention of case law is to clarify the vagaries and inconsistencies of hurried and poorly drafted legislation. Leaving out the level of detail which clarifies if an AST with a S21 (4) (b) served at the outset requires prescribed information to be re-submitted after 6 months is just confusing and will have every agent and landlord trawling through every file they have.
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It really doesn't matter what version the purported s.21 notice was, as s.215 Housing Act 2004 (as amended) makes clear no notice under s.21 can be served, without distinguishing between 21(1)(b) or 21(4)(a), if the prescribed information was not been served.
The key bit in this decision, which follows the logic of Superstrike, is simply that the prescribed information must be served (again) within 30 days of a statutory periodic tenancy arising, as that is a new tenancy. Obviously the same would also apply to any 'replacement' tenancy.
As our report on this case, at the link in the article, makes clear, the prescribed information had never successfully been served on the tenant, even during the fixed term. So no s.21 notice could be served, even during the fixed term.
Whether a s.21(1)(b) served during the fixed term when a deposit and had been protected AND prescribed information served within 30 days, could then be relied on in a possession claim brought after a statutory periodic tenancy had arisen (and with no further service of the prescribed information) is an interesting one. There is a clear argument that such a s.21(1)(b) notice would be validly served. S.215 Housing Act 2004 prevents service of a notice, it does not say that a s.21 notice would be or become invalid. My quick view is that the earlier s.21 notice would probably be valid and could be relied upon. But this question has not been tested at court to my knowledge.
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Correct me if I am wrong, but with MyDeposits, is it not a requirement that one has to pay again upon a new fixed term as well as a periodic; as such, new prescribed info must also be issued as per the terms of MyDeposits scheme rules.
I do not believe this applies to the DPS as they already hold the deposit and, as far as I am aware, their scheme rules only apply to the original protection requirements.
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It is for the landlord/agent to re-serve the prescribed info, not the Scheme. But the requirement to re-serve the prescribed information doesn't rely on whether the scheme charges you for a 'new' protection or not. The landlord is deemed to have received the deposit in respect of the new tenancy, even if it just sits in the same place in the same scheme.
This is why ALL the schemes now advise landlords/agents to re-serve the prescribed information when a tenancy becomes statutory periodic.
Of course, the statute may be amended, but this is the law as it stands.
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I'm still to be persuaded what possible good reason there is for re-serving PI to the same tenants in the same property. Waste of trees and waste of time.
And why such HUGE penalties for non-compliance, PAYABLE TO THE TENANT!!! Big mistake.
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Does this mean that when a 6-month tenancy goes onto a "rolling" tenancy the Prescribed Information needs to be re-issued? (even though it will technically be exactly the same) Seems like a waste of paper to me!
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Yes, that's exactly what it means. Daft, isn't it.
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