It is likely that under the Renters’ Rights legislation due in 2025, tenancy documentation will be highly scrutinised before an eviction trial is allowed – the housing minister Matthew Pennycook has already stated that eviction under Section 8 will go forward only if everything is in order.
There are many “trips and traps” that landlords (and agents) could potentially fall foul of under the new law, as is the case with the outgoing Section 21, but perhaps more so as the government is anxious to relieve the courts of unnecessary work to prevent chaos.
One such potential trap that landlords could be hamstrung with is the issue of properly served “prescribed information”.
A case involving Siddeeq v Alaian (August 2024) went to appeal over the technicalities of servicing Prescribed Information relating to tenancy deposits. Most landlords and agents will be familiar with the requirement under the Housing Act 2004 to serve prescribed information following the receiving of a tenancy deposit, or they jolly well should be.
What many don’t appreciate is the full requirements when doing this and the complications that arise if it is not done properly.
An AST tenancy agreement, which included a section stating the value of the deposit and the various required prescribed information details, had been signed on 12 November 2021.
The agreement also stated that the signature was the landlord’s certification of the prescribed information, and the tenant’s signature was confirmation of its accuracy to the best of their knowledge. The landlord had also included a copy of the deposit scheme (Mydeposits) leaflet.
The deposit was paid over by the tenant the day after the agreement was signed on 13 November 2021. Subsequently, the deposit was protected on about 19 November 2021 and the deposit protection certificate was then provided to the tenant, though importantly the certificate was not signed by either party.
The only signatures required as to the accuracy of the Prescribed Information were those provided in the tenancy agreement, but significantly they were signed before the deposit was received by the landlord. This might seem a minor consideration, but it became crucially important in later developments.
The landlord served a section 21 notice on 3 November 2022 and subsequently a possession claim was submitted using the paper based accelerated possession procedure on 24 April 2023.
However, instead of accepting this notice and leaving, the tenant served a defence as was its right. At the initial trial the District Judge held for the landlord accepting that the documentation provided, i.e., the tenancy agreement and unsigned certificate were adequate.
The tenant was given leave to appeal the judgement. At the appeal, the appeal court judge HHJ Hellman allowed the appeal on the ground that Prescribed Information cannot be served before the deposit is paid to the landlord. Therefore any Section 21 notice served subsequently was invalid.
The landlord’s possession claim failed.
The Housing (Tenancy Deposits) (Prescribed Information) Order 2007
2- (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.
“Both s213(5) and (6) [Housing Act 2004] and Article 2 of the Prescribed Information Order all require steps in respect of the deposit after receiving the deposit. In so far as the district judge said there was “no requirement” for those steps to be taken after receiving the deposit, he erred in law.
“It is not contested that information was given before the defendant paid the deposit. Therefore, I am satisfied that the grounds are made out. As Mr Gannon submitted, prescribed information is defined as being provided after the deposit has been paid. It is not sufficient that information required to be provided is just provided. It must be provided as prescribed, i.e. after the deposit has been paid.”
“Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.”
The appeal court judge further stated:
“I am satisfied that this construction of the statute and the Prescribed Information Order is clear and straightforward and best gives legislative effect to protect the deposit and deal with disputes. It sets out what needs to be done and when it needs to be done and how breaches can be remedied.”
“Your landlord or agent must provide you with key information about your deposit’s protection, called the Prescribed Information.
“Please note, it is the landlord/agent’s responsibility to make sure it is completed accurately, served on the tenant(s) within 30 days of receipt of the deposit and that the tenant(s) have an opportunity to check and sign this document.
“We recommend you read this certificate along with the mydeposits Information for Tenants leaflet, so you fully understand how deposit protection works. Download the certificate.”
This is an important ruling and one that goes beyond the deposit scheme. Landlords and agents must be methodical in complying with the regulations to the letter of the law.
The appeal in Siddeeq v Alaian has clarified that landlords must serve the Prescribed information for a deposit after they have received it, so incorporate it into the rental agreement, however convenient that may seem, may not always work.
The Renters’ Rights Bill, due in 2025, won’t alter the existing deposit protection rules or the prescribed information requirements, but it reinforces the need for scrutiny and full compliance.
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