An interesting case has been published on the Nearlylegal blog about 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.
Company signing certificate
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.
Update to prescribed information being signed by company landlord/agent
There is now a High Court case (so binding) Northwood Solihull Ltd v Fearn & Ors (2020) EWHC 3538 (QB) (thanks to NearlyLegal for publishing details) which has confirmed that deposit prescribed information signed by a company must follow the procedures set out in the Companies Act (two directors, director and company secretary or director and witness).
The position therefore appears to be as follows:
If the landlord protects the deposit, the deposit prescribed information must be signed by the landlord. If the landlord is a limited company, and protects the deposit, the signing must be in accordance with section 44 of the Companies Act 2006. If the deposit is protected by the letting agent, the prescribed information can be signed by either the landlord or the agent. Though not the point under discussion in the Northwood case, agents would be well advised to sign all prescribed information in accordance with the Companies Act as a precaution.