An interesting case around deposit compliance has just been heard.
The case is around the need for landlords and agents to comply with the“initial requirements” of the deposit scheme they choose to use. The legislation does not talk about “protecting the deposit” but rather says that the landlord/agent has to comply with the “initial requirements” of the deposit scheme. It goes on to clarify that the “initial requirements” of a deposit scheme are the requirements the scheme imposes.
The need to give prescribed information within 30 days is listed in the Housing Act 2004, but for the MyDeposits scheme the need to give the prescribed information within 30 days is also listed as an “initial requirement”. Under the legislation if the prescribed information is not given in 30 days a section 21 notice can be served, provided the prescribed information is given first. However, if an “initial requirement” that is not completed within 30 days only allows for the section 21 notice to be served after the deposit has been refunded to the tenant.
In this case the prescribed information was given late, ie after 30 days but before the section 21 notice was served. The question was did the “initial requirements” of the deposit scheme, which included giving the prescribed information within 30 days, create the higher level of burden to refund the deposit before the section 21 notice could be served.
The decision of the court was that the “initial requirement” of the scheme had not been complied with and therefore the section 21 notice was not valid. The landlord needed to refund the deposit before the section 21 notice could be served.
This case very much hinged on the wording of the specific deposit scheme being used but it is a clear warning to agents to ensure they know the rules of which ever schemes they are using and to be sure to follow them. It could also be said to be a warning to the scheme not to make the initial requirements too onerous as this simply risks disadvantaging their members. Had this case been in respect of another scheme they would been alright as the schemes rules do not make serving the prescribed information within 30 days and initial requirement.
We have long warned about this risk and encouraged the deposit schemes to keep the rules, but particularly their initial requirements, as simple as possible. This is only a county court case so is not binding on other court. We are not aware if this judgement will be appealed (as it may be cheaper and easier to give the deposit back and reserve the notice than to appeal).
Amak Property Investments (London) Ltd v Laura Sonny
B01CL657, 15 September 2016, the County Court, Central London.