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Question

Deposits and Tenancy Deposit Schemes (England)

Deposits and Prescribed Information

30 Aug 2016 | 1 comment

I have various tenancies which began 4 to 5 years ago. I took deposits and registered them with the DPS. However, it would appear that I have not given sufficient ‘prescribed information’ to the tenants. I thought, incorrectly that the information the tenants received back from DPS once the deposits had been registered would suffice. I wondered what would be the easiest way to rectify this. All the tenancies are now on periodic. Could I issue new tenancy agreements and transfer the deposits to these?

Answer

1 Comment

  1. guildy

    You are not alone and this is a very common mistake. There are a couple of options.

    Firstly, I don’t think doing a new tenancy is necessary. Even if you did, it wouldn’t fix the previous breach and the penalty would still apply. The only small advantage might be that you would reduce the 6 years time limit the tenant must make a claim by. Arguably, the clock would start ticking from the start of the new tenancy (as opposed to when they left). However, that theory hasn’t been tested.

    You could either:

    (i) Issue all full prescribed information now and just get it done. Again by doing this now could at least start the 6 year clock ticking for a claim to be made (although not tested). The downside to this is you could trigger a reaction by the tenant wondering why it’s just been issued. I must say though if they are all good tenants and everything is running smoothly, why would they be bothered (and this is the reality in most cases)?

    (ii) You could just do nothing and only issue prescribed information on any that you needed to serve a section 21 notice (2 months notice) on. This would have to be done before service of the notice (ideally by at least 4 days). The downside to this option is that the 6 years they have to claim doesn’t start until they either leave the property or you do issue the information (just to repeat, this hasn’t been decided by the court yet).

    I think my preference is to just take the hit and get the information issued as per (i). I think if a penalty were sought by any of them, the fact you issued as soon as you became aware would help immensely with the level of penalty ordered (which is at the discretion of the court and is between 1 and 3 times deposit).

    See this case for an example of the penalty being reduced because of the actions of the landlord as soon as they became aware.

    This isn’t an easy question to answer because once 30 days has gone, that’s it, there’s no going back. We call it a “cliff edge”. Although in respect of serving a section 21, the prescribed information can be served late and then the 21 issued (unlike a failure to protect which would require the return of the deposit first).

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