As a result of the recent Superstrike Ltd v Rodrigues tenancy deposit decision serving a section 21 notice has become much more difficult where a deposit has been taken. This is even if there was no need to protected the deposit because it was physically received before April 2007 or, even if the deposit was perfectly protected and prescribed information given at the time of granting the tenancy.

This is because that decision ruled that a deposit taken before the legislation started, nevertheless needed protecting and as a result many commentators are suggesting that as result, it may be that prescribed information needs to be provided not only upon receipt of the deposit but also again if the tenancy turns statutory periodic (because in effect, the deposit is repaid under the old and retaken under the new statutory periodic tenancy).

We have already issued guidance in relation to the Superstrike decision offering advice on what to do in certain situations where there is a deposit but we also wanted to offer absolute definitive advice in relation to section 21 notices. We didn’t want to provide guidance such as that jointly offered by all the deposit schemes which has been described as a chocolate tea pot, damp squid or wet hen (not our words!)

The guidance provided by other associations is basically the same.

In fairness it is very difficult to know what advice should be given because we don’t know for certain ourselves.

Our newly refurbished and updated possession notice wizard though is different. It asks a series of questions and gives a definitive answer as to what action to take when serving notice (I.e. whether to serve prescribed information or return the deposit before any notice is served and which notice is appropriate in the given circumstances).

section 21 and section 8 possession notice guidance

This proved to be an enormously complicated algorithm in the end and the result is determined by when the deposit was first received, when prescribed information has been given, what tenancy is being used and where the tenancy currently is (fixed term or periodic).

flowchart of algorithm possession notice guidance

Despite the complicated formula arriving at the appropriate answer, ultimately it’s proving very useable by members after feedback received over the last couple of days. This is partly because although its complex in the background, once you’ve started answering questions, the path to the answer is shortened by each q and a because for every answered question that means another 6 or 7 questions are no longer needed so removed.

possession notice wizard

Hopefully soon, something will be sorted with Superstrike such as an appeal or legislation change (the latter is currently looking the most likely from our discussions with DCLG and MP).

As a reminder, our tenancy agreements marked 06/13 (June 2013) will not require prescribed information to be given again even if the commentators suggesting it might need giving a second time are correct.

Members of the Guild may use the possession notice wizard and download notices included with their membership here