An order for possession has been set aside by a court on the basis that the Prescribed Information did not contain the landlord’s name and address.
Instead, it showed the agent’s name and address as the holder of the deposit.
The deposit itself was protected by the TDS, which has always advised that either the landlord’s name or that of the agent can be used in the Prescribed Information.
The Prescribed Information itself was served to the tenant within the correct 30-day limit. However, after possession of the property was sought and given, the tenant appealed – and was successful.
The agent concerned is trying to seek legal clarification, and may themselves now appeal.
A spokesperson for the TDS said that its Prescribed Information template had been unchanged and unchallenged since the start, in 2007, and that its format is based on both legal advice and consultation with the government department concerned, CLG.
He said: “This has made it clear that the information to be provided to the tenant on the Prescribed Information form should include who is actually holding the deposit and this is consistent with the tenancy deposit legislation, which says that references to a landlord include any person acting on their behalf in relation to the tenancy.”
He added: “We think this is the first case where this issue has been raised.”
Pending further clarification which we hope to be able to bring you, agents and landlords might meanwhile like to note the above.
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Comments
Just as an update and probably a little late a bit more information on this case where detail seems hard to come by.
The TDS version of the PI if used as on the TDS website just might be the root of the problem in this decision. The reason being that TDS refer to "deposit holder" as opposed to Landlord name and address.
Understandable - but that isn't what the Statute is demanding and may be the reason why the decision went the way it did. In other words the exception allowed(and acceptance of) an agent's details as acting for the Landlord and as specified in the Statute would not apply because it wasn't Landlord details being sought in the PI form in the first place.
Just a thought but may be why the CC Judge took the decision he did and maybe it is not such an obvious error at Law. As ever only an Appeal can define it.
@Allan (and all others)
Interesting point and blog but in reality there has always been a powerful argument that the Landlord name and address should appear in the s8 notice. Not because of the rent demand and s47 argument, but because the s8 notice is a prescribed form.
So it it asks for the landlord's name and address arguably that is what should be given. In effect one stage earlier than when it absolutely has to be, in Court summons papers, when the only accepted alternative is the Landlord's solicitor.
If the LL is distant from the property it is best practice to enter their name and address no reason not to and cannot be wrong if you do. If they live just round the corner and fear direct approaches from the tenant if they knew that, then there is more of an argument and a mitigating circumstance.
I think Linda Howard, who works in Shoosmiths Access Legal's Landlord and Tenant law team, proved very prescient when she published a blog on this very topic in July last year. Check out www.access-legal.co.uk/legal-news/Agent-rather-than-landlord-address-no-good-any-more-on-Section-8-Notices-for-rent-arrears-4804.htm
We should seriously worry about the competence of some of our judges when it comes to tenancies. We spend a lot of time discussing the decisions they make and no one can see the sense of what they decide. It takes an expensive appeal to put things right unless of course the BBC agree with the incorrect initial verdict. If this happens then we may well be lumbered with the consequences until yet another law is put in place to change the meaning of the first law back to what was intended.
I have had little contact with judges but I do appreciate that they have great intellectual ability but I do think that if they are altering the law the they need a little more than intellect. They need some real world common sense.
Simply judging someone who has broken a well known and understood existing law is a much simpler matter than altering a law on the hoof to make it fit some weird perception of misunderstood facts.
I too thought that an agent was a legal representative of the person who appointed them. Has this now changed?
It's seriously not a good time for agency and if I wasn’t so high on mind altering legislation I’d hit the eject button! My old sparring partner IO is on the money with HA 2004 though (It’s there in glorious 1080p) but if the courts dumped on this then I guess the only way we're getting lucky is with some sort of power of attorney; but that means getting all the flak Landlord & Tenant Act wise and I'd rather keep a force field around that. Praying on an appeal….
Further research shows
Come On
to be right but with slightly different working.
HA 2004 in S.212 says you can substitute any person acting on the landlords behalf for the landlord. That 'discretion' has to apply to the SI which brings the primary legislation requiring PI to be served into effect.
The original Order was simply set aside so it may also just have been an application to another District Judge. Either wayif appealed to a Circuit Judge it would be overruled as an error at law and the Order would stand.
Phew - panic over!!
@Trevor Mealham INEA on 2013-06-27 08:56:57
In my view the last para. of your post is mostly correct......if you omit the last two words it is totally correct!
The concept of agency is a fundamental part of English Law. It is where another takes on the role of a principle in a contract.
Therefore agents details are interchangeable with a principles details (landlords). This is true for all law unless specifically ruled out in my view.
Which case was this?
Hmm now this really is interesting. Excuse lenghty post which hopefully provides a few answers.
The PI form we use for all three schemes states after the relevant entry asking for details of the Landlord's name and address:-
"As per tenancy agreement clauses 1.2, 1.3 and 1.4 above (can be omitted if the Agent is holding the
deposit in their own client account)"
so it looks like i've fallen for what I preach against which is only a Court opinion matters and have also listened to CLG and TDS!! Clearly in the light of this case, although presumably an appeal to a Circuit Judge and not the CoA (heaven help us if it is) this will have to be changed and the Landlord detals themselves had bettwe be shown, at least until this case is clarified if indeed it is.
My guess is this was an appeal to a Circuit Judge who overruled the District Judge in the CC decision. If so then an appeal is indeed needed, though this decision itslef is not binding (but other CC Judges will be influenced by it).
The problem quite clearly lies in the CLG and Scheme interpretation of what is or is not acceptable ion terms of LL details in the PI form. Remamber the form itself is not prescribed, but the information contained therein is.
So......
The relavant statute is
The housing (tenancy deposits)(prescribed information) order 2007 (si 2007 no.797)
which flowed from the 2004 Act. Now look at g(iii) below - see any mention of using the agent's details instead? No there isn't, the PRESCRIBED INFORMATION requested is the Landlord's and it is that information which at Law must be provided, and is probably why the order was overturned.
(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. .
(2) For the purposes of paragraph (1)(d), the reference to a landlord or a tenant who is not contactable includes a landlord or tenant whose whereabouts are known, but who is failing to respond to communications in respect of the deposit.
Oh dear as things stand all those of us with wording along my lines or simply putting in the agent's details are stuffed, me included.
Not a nice feeling.
Agree with Trevor and IHS. UNBELIEVABLE NONSENSE!
OMG! What happened? Was the deposit not protected? Was the tenant in danger of losing his money??? DID HE NOT KNOW WHO HIS LANDLORD WAS??????
What is the f'in problem?
Even when agents do follow the T's and dot the i's what a shame (or SHAM) government can't always give clear guidance to agents or agree correct guidance required via pre regulation created through dummy trial court cases to see 'what if' scenario's.
Agents then pay for training and set systems to be told effort and costs run are 'cods wallop'
What a stupid country place the UK can be to run a business at times.
This is actually more satisfying than watching a Beemer driver plough into a row of traffic cones on the motorway he hadn't seen because he was watching porn on his Ipad.
Quite why it has taken 6 years for the this(anagram) to hit the fan is beyond me but finally it has and it really is flying everywhere.
This case would appear to have far more serious consequences than Superstrike if not overturned. We follow the rules laid down by CLG and TDS and are still in the wrong - makes you want to give up!