Guidance from tenancy deposit protection schemes following the Superstrike Ltd. vs Rodrigues Court of Appeal case

Our AST does not state a fixed period as such we have it worded as:

"TERM: A term certain of a minimum of six months from the 27 May 2012"

"The Landlord agrees to let and the Tenant agrees to take the Property for the Term at the rent payable as above

This Agreement creates an Assured Shorthold Tenancy as defined in Section 20 of the Housing Act 1988 and the provisions for the recovery of possession by the Landlord in Section 21 thereof apply accordingly "

Presumably in the eyes of the law this still constitutes a "Fixed Period" ?

Reply to the comment left by "Graham Kinnear" at "01/08/2013 - 10:15":

Hi Graham, you don't have a business profile so I have no idea who you are or how to contact you
.

I have the solution and to be honest I really don't know why nobody else has thought of it. We should all give Dr Who a call and borrow his Tardis so that we can go back in time and issue the notices correctly using the knowledge we now have so that we don't find ourselves in breach of an "interpretation" that did not exist at the time. Sorted!!

After 6 years of running what we thought was a water-tight ship, with not one deadline missed and PI issued and signed by every tenant, we can't believe that this situation has been allowed to develop. We have followed all the advice from the DPS and felt secure in our managements of our deposits up until this case.

It is unthinkable that the government would allow Landlords and Letting Agents to be exposed to such risk due to poorly worded and unclear legislation. We are now exposed to huge financial loss and would have to seek redress from someone in order to stay afloat.

As this is a national issue, which would appear to have affected pretty much all periodic tenancies, the government need to step in fast to quash ridiculous claims from tenants. If the deposit was protected and the PI issued within the 14/30 day deadlines then what is the point of issuing the same document 6 months later?

We are now reissuing PI on all periodic tenancies in order to resume the right to issue a section 21 notice but are we supposed to take the money out of the DPS and put it back in or does that remain untouched and protected? Having emailed the DPS we await clarification.

The whole thing is a joke !!!

Well I must say I was confused before- and even more confused now. It seems I am not alone judging from the comments. Yes - we landlords/letting agents are damned if we do and damned if we don't. But cutting through all the ****** I take a crumb of comfort from this particular extract from the letting bodies guidance:

"However,if a tenancy is performing well there is not necessarily any immediate
need to take any action but it is worth considering your exposure to potential sanctions should you need to use s21 or believe that your tenant may be considering legal action on the basis of this legal precedent. Further guidance
is available from the TDP scheme providers"

Sometimes when things like this happen then by actually doing something, i.e re-serving prescribed information on all affected tenancies you actually raise the tenants knowledge of it. Most tenants want somewhere to live with a reasonable rent, a landlord who leaves them alone, and a well maintained property. Most tenants I deal with only want to know their tenancy deposit is protected. They could not give a hoot about prescribed information etc etc. I only have about 20 tenancies to worry about and so if I decided to address the implications of this I could do it over a few weeks. But how about agents / landlords with hundreds if not thousands of tenancies?

Now bear with me please while I ramble on a bit............

When I worked in the Home Office in a former life one of my jobs was to "risk assess" 43 police forces on their "Best Value" reviews. ( No jokes please about how Best Value and Policing can be mentioned in the same breath!!) With each force doing around 20 of these a year across different business areas (800 per year) I had to prioritise those that would cause me and my fellow Inspectors grief by coming up with a desktop review tool to provide a "quick and dirty" look at various risk factors and those that scored high got looked at in more depth. those that didn't - didn't.

And in effect in a very generalised sort of way, is what the Regulating Bodies advice is saying. Risk assessment is about decomposing and breaking down a risk into component parts to come to a "reconstituted overall decision. It may not be perfect- but it provides a form of "due diligence" for landlords and letting agents to use if questioned. It may not cut any ice with a judge to tell them "well we risk assessed this tenancy on the risk to both landlord and tenant and it was xxxx" - but surely it would be better than either doing nothing - or trying to do everything.

I do agree though that this mess needs to be sorted out by and appeal on Superstrike, legislation, or government guidance to the judiciary on Section 21s and deposit protection.

Reply to the comment left by "Gary Nock" at "01/08/2013 - 15:42":

So are you thinking that we should maybe not reissue PI. The same thought occurred to me that we are bringing it to the tenant's attention but then we could run into problems with the LL if they can't issue a section 21 notice.

That's my thinking. If you reissue PI outside the 30 days of the periodic tenancy occurring then the judge may not allow a section 21 anyway. I think until this farce is sorted out that section 21 is useless in cases where landlords have retrospectively transgressed. If the tenant has not paid or otherwise breached the tenancy then section 8 or it's derivatives seems our only eviction option unless you have complied with the PI requirements to the letter where the tenancy has become a statutory periodic.

Reply to the comment left by "Gary Nock" at "02/08/2013 - 22:50":

Apparently you can issue the PI outside of 30 days and then issue the Section 21 notice after the PI has been signed and dated. It's only if you fail to protect the actual deposit within 30 days that you are unable to enforce section 21 notices. The DPS Guidance does confirm this.

My big question at the moment is whether the deposit has to be removed from the DPS and physically put back in or is it only necessary to reissue the PI when tenancies go periodic? I'm still waiting for a response from the DPS.

We are in the process of changing from a partnership to a limited company and although the DPS seem happy for us to just change our name on our account we've decided to combi up the reissue of the PI with our new company name & as a response to the farce following this recent ruling.

This should, and I say should as nothing can be relied on it would seem, at least allow us to enforce section 21 notices if the Landlord wants the tenant to vacate. As to the penalties we will have to hope that our Professional Indemnity insurers don't let us down if we have a claim.

Its very easy to look on the worst case scenario but actually 99% of our tenancies end without dispute and we have excellent working relationships with our Landlord's and Tenant's. Until a higher power put some certainty back into the system we will have to have some faith in human nature and hope the humility & dignity of our clients sets the precedence. There's not much more we can hope for.

Anon that is very helpful. I am audiring all my tenancies now. I normally issue the PI at the time of commencing a tenancy and get the landlord to sign following the stated case on Wise Moves a couple of weeks ago. So is the easiest way to serve stat periodic PI to serve the DPS form by first class post with a certificate of posting or do you need to enclose a copy of the tenancy agreement as well to satisfy the requirement as to how the deposit will be dealt with?

Reply to the comment left by "Gary Nock" at "03/08/2013 - 13:00":

Hi Gary, We won't give another copy of the tenancy agreement as the existing one stands and has just gone periodic (between the Landlord and tenant). We will get every tenant back into the office to sign the PI and physically hand them their copies and a new set of DPS T&C's. We name us, the LL and all the tenant's details on the PI to be on the safe side. This is how we always issue PI at the start of the tenancies so that tenants cannot claim later they didn't receive the correct paperwork.

We also sign the PI, as the agent, working on the behalf of the LL that the info is true to the best of our knowledge etc. We only protect deposits in respect to managed tenancies where we have an on-going working relationship with the LLs. Intro Clients collect and protect their own deposits.

What are you doing about the actual funds in the DPS? Are you trusting them when they say that the deposit remains protected until both parties agree to release the funds even on an extended tenancy? Or are you taking it out and re submitting? That would be so time consuming and could create more problems as there would then be a period it was unprotected between release and re submission !! I think its better left in once its there.

At this point I think the only issue we've fallen foul of is not reissuing the PI at the periodic point, like most LL's and agents across the UK. We can thank the DPS for not advising us we should have. We've done everything possible to comply with the legislation until this point. We can only mitigate, following this case, with reissue of PI all be it after the 30 days.