We are running out of titles for deposit blogs. We have had some queries regarding a court case in which possession proceedings were thrown out because the Prescribed Information had been signed by the agent, not the Landlord. This is unreported and we do not know exactly what went on although it has been reported here:
Painsmith has also experienced a claim for possession defended on this same point: the tenant argued (i) that the certificate on the deposit protection certificate must, pursuant to paragraph 2(g)(vii) of the The Housing (Tenancy Deposits) (Prescribed Information) Order 2007, ( the Housing Order ), be signed personally by the landlord, (ii) that under paragraph 2(g) (iii) the landlord’s address etc must be provided and not the agent’s and that accordingly the s.21 notice is invalid.
In our case the matter settled so we can only speculate on the outcome of that hearing, which would have only been a county court decision and thus not precedent.
However we disagree with the above view. Section 2 of the Housing Order provides that prescribed information for the purposes of section 213(5) of the Housing Act 2004 (“the Act”) includes: at 2g (iii) “the name, address, telephone number, and any e-mail address or fax number of the landlord”; and at 2g(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.
The Housing Order sets out what information is needed for the purposes of the Housing Act 2004. Chapter 4 of the The Housing Act 2004 deals with tenancy deposit schemes. Section 212 part 9 of the Housing Act provides that “In this Chapter [ i.e. Chapter 4] – (a) references to a landlord or landlords in relation to any shorthold tenancy include references to a person or persons acting on his or their behalf in relation to the tenancy or tenancies……”.
So, for the purposes of s213, the obligations on the landlord are also onto a person or persons acting on his or their behalf i.e. his agent. The Housing Order prescribes what information must be given for the purposes of compliance with s213.
In our view “landlord” for the purposes of the Housing Order 2007 should share the definition with the primary legislation i.e. the Housing Act 2004. It is not logical to interpret the Housing Order 2007 in a way that is incompatible with its parent legislation.
It follows that in our view the deposit schemes are correct to allow the agent to sign.
However as we know, the courts can make some odd decisions so we might have to concede if a precedent is set in a higher court. Watch this space.