Suurpere v Nice & Anor [2011] EWHC 2003 (QB)

This is a significant High Court (so binding) case which highlights what we have been banging on about for several years now namely, the importance of the prescribed information. As we often say, 90% of landlords are protecting deposits (not an official statistic, for illustration purposes only) and 89% are NOT giving the prescribed information either in full or properly.

Background

Mr and Mrs Nice (the landlords) granted an assured shorthold tenancy to Karin Suurpere on 6 January 2009 for a fixed term of 6 months. The rent being £300.00 per calendar month and a deposit of £500.00 was paid on commencement of the tenancy.

On 20 July 2009 the deposit was protected by the landlords using the free custodial scheme Deposit Protection Service (DPS).

On 10 August 2009 the tenant issued proceedings against the landlord which included a claim for three times compensation because although the landlord had protected the deposit, it was not done within 14 days and that no prescribed information had ever been provided. In addition, the tenant also pursued claims for wrongful eviction, on which point she failed, and for breach of the covenant of quiet enjoyment, which succeeded and for which she was awarded compensation of £1,000.00.

This appeal only related to the two deposit issues (failing to protect within 14 days and failure to provide prescribed information)

The DPS informed the tenant on 21 July 2009 that the deposit had been protected, provided the website address where the terms and conditions could be downloaded and provided the following information:

“Deposit ID: xxxxxx
Rental property: [a street] , GUILDFORD, SURREY
Name of Lead Tenant: Miss Karin Suurpere
Agent/Landlord name: Mr Christopher Nice
Agent/Landlord address: [a street], WOKING, SURREY
Start date of tenancy: 06 January 2009
Tenancy period: 6 months
Deposit amount: £500.00
Date deposit received: 06 January 2009″

In a subsequent letter to the tenant, dated 8 September 2009, the DPS confirmed the date of 20 July as the date when the deposit had been submitted to them. In a deposit summary, dated 8 October 2009, the DPS set out the registration number, the name and contact details of the landlord, the address of the property and the amount of the deposit.

At the first hearing, Judge Reid dismissed the tenants claim, applying the decision in Draycott & Draycott v. Hannells Letting Limited (trading as Hannells Letting Agents) [2010] EWHC 217 (QB) which at the time was the only authoritative case and finding that, since the deposit had in fact been lodged under the Deposit Protection Scheme on 20 July, before the commencement of her proceedings on 10 August, the penal sanctions in s. 214(4) did not apply.

The deposit was later returned to the tenant in full on 1 September 2009 when the tenant vacated (although see later as despite vacating, the tenancy had not ended at this time).

The Appeal

By the time of the hearing of the appeal made by the tenant against the refusal to order compensation of three times deposit, the decisions of Tiensia v. Vision Enterprises Limited (Trading as Universal Estates): Honeysuckle Properties v. Fletcher and Others [2010] EWCA Civ. 1224 and Potts v Densley and Pays [2011] EWHC 1144 (QB) had been handed down.

In relation to the protecting within 14 days issue because of the afore mentioned cases in particular, Tiensia, that part of the appeal was unsuccessful. However in relation to the prescribed information …

The Prescribed Information order

The prescribed information requirements are contained in the Housing (Tenancy Deposits) (Prescribed Information) Order 2007 and requires the following information to be provided:

Prescribed information relating to tenancy deposits

2.—(1) The following is prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”)—

(a)the name, address, telephone number, e-mail address and any fax number of the scheme administrator of the authorised tenancy deposit scheme applying to the deposit;

(b)any information contained in a leaflet supplied by the scheme administrator to the landlord which explains the operation of the provisions contained in sections 212 to 215 of, and Schedule 10 to, the Act;

(c)the procedures that apply under the scheme by which an amount in respect of a deposit may be paid or repaid to the tenant at the end of the shorthold tenancy (“the tenancy”);

(d)the procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy;

(e)the procedures that apply under the scheme where the landlord and the tenant dispute the amount to be paid or repaid to the tenant in respect of the deposit;

(f)the facilities available under the scheme for enabling a dispute relating to the deposit to be resolved without recourse to litigation; and

(g)the following information in connection with the tenancy in respect of which the deposit has been paid—

(i)the amount of the deposit paid;

(ii)the address of the property to which the tenancy relates;

(iii)the name, address, telephone number, and any e-mail address or fax number of the landlord;

(iv)the name, address, telephone number, and any e-mail address or fax number of the tenant, including such details that should be used by the landlord or scheme administrator for the purpose of contacting the tenant at the end of the tenancy;

(v)the name, address, telephone number and any e-mail address or fax number of any relevant person;

(vi)the circumstances when all or part of the deposit may be retained by the landlord, by reference to the terms of the tenancy; and

(vii)confirmation (in the form of a certificate signed by the landlord) that—

(aa)the information he provides under this sub-paragraph is accurate to the best of his knowledge and belief; and

(bb)he has given the tenant the opportunity to sign any document containing the information provided by the landlord under this article by way of confirmation that the information is accurate to the best of his knowledge and belief.

In this case the tenant accepted that the information in paragraph (a) was provided. However, it was submitted that the evidence did not demonstrate compliance with paragraph (b), and there was clearly no compliance with paragraphs (c) or (d). Further, whilst paragraphs (g) (i) to (iv) and, arguably, paragraphs (e) and (f) were complied with, there was no compliance with paragraph (g) (vi) or, importantly, with paragraph (g) (vii).

The landlord contended

  • that they transferred the deposit on 20 July 2009;
  • that they gave the tenant full details of registration of the deposit on 21 July, confirming the deposit reference number and providing details of the DPS website; and
  • that they had complied with their duty to provide information as required by the Act and the 2007 Order.

Alternatively, if they are wrong about that and they did not comply, then they contended

  • that they were not required to supply the tenant with the prescribed information after they had returned the deposit to her on 1 September.
  • that a tenant who has had information provided about the deposit and has then had the deposit returned in full does not require protection. It would have been futile for them to have given particulars of the scheme to the tenant between 1 September 2009 and 1 June 2010, the date of the hearing of the tenant’s claim under s. 214, by which time the deposit was no longer in the scheme.

In the further alternative,

The decision of Mrs Justice Cox

Return of the deposit before the hearing:

Importantly,  the court point out:

The landlords’ dual obligations are continuing obligations once a deposit has been paid. The obligation to give the prescribed information therefore continues, irrespective of the return of the deposit before the date of the hearing

So, it would seem the returning of the deposit does not protect the landlord from the penalty provisions. In Potts v Densley and Pays [2011] EWHC 1144 (QB), it was also stated:

“… a party’s position as ‘the landlord’ or ‘the tenant’ for the purposes of these provisions crystallises when a deposit is paid in connection with shorthold tenancy. Thereafter, ‘the landlord’ (i.e. the person receiving the deposit paid in connection with a shorthold tenancy) continues to be ‘the landlord’ for the purposes of the statute whether the tenancy has been determined or not and remains under a continuing obligation to comply with the initial requirements of the scheme and to provide the prescribed information. Moreover, it remains the case that the landlord will still be subject to sanction if he has not complied with the initial requirements of the scheme or provided the prescribed information by the time of hearing of the section 214(4) application (following Tiensia) …” [para 53]

The information provided by the DPS:

This leaves the defence that the information provided by the DPS was in essence the landlord complying with the prescribed information order point, to which the court held (and this is the important bit!) (emphasis added):

The [landlords] contend that they did comply with their obligation in this respect, through the information that was provided to the [tenant] by the Deposit Protection Service in their letter of 21 July 2009, informing the [tenant] that the [landlord’s] had submitted a deposit of £500.

There are two difficulties with this argument, however. First, the obligation under this legislation is that of the landlord personally. The provision of information to a tenant by the Deposit Protection Service in this way does not, in my view, amount to compliance by the landlord personally with his obligation under s. 213(5) and (6)(a).

Secondly, the information provided in the letter of 21 July did not in any event include all those particulars which must be provided pursuant to the 2007 Order and which must, importantly, be certified by the landlord as accurate particulars. As Mr Butler correctly pointed out, the information provided included only some of the particulars listed in Article 2.

Nor is it open to the [landlords] to suggest that further information would have been available to the Appellant on the Deposit Protection Service website, as their letter pointed out, in order to plug any gaps in the information provided by the [landlords]. Firstly, there is no evidence as to what information is actually provided on that website. Secondly, it will not in any event be information which has been certified as accurate by the landlord personally. Thirdly, a high number of tenants in social housing are unlikely to have easy access to computers, in order for them to discover this information. The obligation to provide it is in any event the landlord’s. [paras 49 – 52]

Finally, the end of the tenancy point:

In the present case Mr and Mrs Nice submit that “It is clear that Ms Suurperes’ tenancy terminated on 14 August 2009 when she vacated.” They suggest that she accepted that her tenancy had ended; that she abandoned the premises and paid no further rent; and that she demanded the return of her deposit, which was returned to her in full. Relying on the decision in Gladehurst they argue that the Court had no power to make an order under s. 214(4) because the tenancy had come to an end on 14 August 2009, when the [tenant] vacated the premises.

The difficulty with this argument however is that, in the present case, there is no evidence to support the submission that the tenancy came to an end when the [tenant] left. It was not in dispute in Gladehurst that the tenancy had terminated. However, the [tenant] in the present case did not accept that her tenancy had been determined because she brought a claim for wrongful eviction, claiming that she was forced to vacate as a result of the [landlords’] harassment.

Nor is there any evidence to show that she had surrendered the tenancy. The [landlords] issued and pursued a claim for possession, which was stayed by Judge Reid pending determination of the [tenant’s] claim for damages, and which therefore remained outstanding as at the date of the hearing. In fact, Judge Reid found that the Notice to Quit was defective in this case because it did not provide the [tenant] with two months’ notice, as required by s.21(1) of the Housing Act 1988. …

In these circumstances, however, it would appear that the [tenant’s] tenancy had not been lawfully determined as at the date of the hearing and that the [landlords] cannot therefore rely upon the decision of the Court of Appeal in Gladehurst. The principles established in Tiensia and Potts, to which I have already referred, therefore apply in this case.

The landlords were ordered to pay to the tenant the sum of £1,500.00 within 14 days (three times deposit)

Final comments worthy of note (emphasis added):

Finally, I add the following observations, in the hope that they may be of some general assistance.

The [landlords] in this case were plainly unaware of the nature and extent of their obligation to give prescribed information to their tenant; and unaware of where the prescribed form could be found. There is no question of their failure to comply being in any way deliberate or contumelious.

There was some discussion before me as to the availability of information for landlords in the private sector and where it might be found. I am therefore grateful to Mr Butler and to his instructing solicitor for submitting a short note, after judgment was reserved, following enquiries as to the existence of a prescribed information template for landlords.

Such a template was located using the following website address: “http://www.depositprotection.com/documents/prescribed-information-template.pdf

A copy of the template was attached to the note. It is unclear whether this template would have been available to the Respondents in 2009, when the Appellant’s deposit was placed with the scheme administrator, but in the circumstances it clearly deserves wider dissemination.

The judgment Suurpere v Nice & Anor [2011] EWHC 2003 (QB) is available here

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