An interesting case has been published on the Nearlylegal blogabout tenancy deposit prescribed information requirements.

The landlord was a company namely Manaquel Company Limited and the company granted an assured shorthold tenancy to Mr Bali.

At some point during the tenancy, the company landlord purported to serve a section 21 notice on the tenant which was defended on the grounds that the landlord had not properly served the deposit prescribed information.

At the first instance, the court held the company had provided all the necessary information and ordered possession.

The tenant appealed on the same grounds as the at the first hearing namely:

1) the landlord had failed to provide a leaflet contrary to article 2(1)(b) of The Housing (Tenancy Deposits) (Prescribed Information) Order 2007; and

2) the landlord had not properly given the certificate as required by article 2(1)(g)(vii) of the same order.

Requirement to provide a leaflet

On the leaflet point, article 2(1)(b) requires the landlord (or agent) to provide:

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;

It was accepted that the DPS ‘tenant’s information’ leaflet had not been provided but the DPS terms and conditions had been.

The court held that the requirement was to provide ‘any information contained in a leaflet’ but not necessarily the leaflet itself. The court further held that because the DPS terms and conditions were included and that they included all the information contained in the leaflet, that part of the prescribed information order was satisfied.

Certificate signed by the landlord

In respect of the certificate part of the appeal, that part of the order requires the landlord (or agent) to provide:

2(1)(g)(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.

The question raised in the appeal was whether the certificate was properly ‘signed’ by the company landlord.

The prescribed information had been signed with Manaquel’s name written in manuscript as Manaquel Co. Ltd, and signed PP.

Section 44(2) Companies Act 2006 provides:

A document is validly executed by a company if it is signed on behalf of the company–

(a) by two authorised signatories, or

(b) by a director of the company in the presence of a witness who attests the signature

The appellant tenant submitted that the single signature (as pp) did not comply with the requirements of the Companies Act and that the prescribed information is a document which must be validly executed.

The court agreed and held –

that it was [a document which must be validly executed], as it was a certification of the accuracy of the information for a ‘formal legal purpose’.

As a result, the prescribed information order had not been fully complied with and as such the section 21 purportedly served was held to be invalid.

Time has been allowed in the judgment for the landlord to appeal.

Comment

This seems particularly harsh when everything other than the signature appears to have been in order.

Under section 213(6) Housing Act 2004, the prescribed information must be given in the prescribed form or a form substantially to the same effect. It doesn’t appear to have been argued by the landlord that the form could well have been substantially to the same effect even if the signature point is correctly decided (which remains to be seen if it goes to further appeal).

On the leaflet point, I’m not sure I entirely agree with the leaflet finding where the DPS is concerned.

The DPS have told us on more than one occasion that they don’t produce any leaflet for the purpose of the prescribed information order.

The prescribed information order requires the landlord (or agent) to provide:

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;

The DPS provide no such leaflet to the ‘landlord’ only to the tenant. The requirement in the order is in relation to a leaflet supplied to the ‘landlord’.

On looking on the Deposit Protection Service website under -\> documents -\> landlord, no leaflet is provided. Further, on looking at the sample prescribed information template provided by the DPS, no leaflet is required nor supplied – only the scheme terms.

I entirely accept the point is mute because according to this case, the terms and conditions are enough anyway. However, I respectfully submit in the case of the DPS, the leaflet was never necessary. This is not the case with other schemes who do provide a leaflet for the ‘landlord’ explaining the provisions etc.

All that being said, of course, landlords and agents should just supply the tenants leaflet and be done with the argument (the agreements and prescribed information we supply for DPS have always contained said leaflet (and will continue to do so)).