Landlords are familiar with deposit protection. Solicitor Linda Howard advises on how to present the Prescribed Information
Landlords know they are legally obliged to register and protect a tenant’s deposit in an authorised scheme.
Failure to do so risks fines of up to three times the deposit, while a tenant will be able to challenge a Section 21 notice.
However, as has now been underlined by the Superstrike case, landlords also need to pay attention as to how the Prescribed Information about the scheme they are using is presented to the tenant. This is also to avoid the possibility of tenants arguing that the landlord’s S21 notice is invalid and that possession should not be granted to the landlord.
We have had several recent examples of tenants, defence lawyers and law centres looking at the minutiae of how the Prescribed Information was filled in and completed by either the landlord or their agent. Such an exercise appears to be undertaken as a means of either getting a penalty award out of the landlord or to argue that the landlord’s S21 notice was invalid.
Section 213(5) of the Housing Act 2004 requires a landlord to give the tenant (or any other relevant person) quite a lot of information about the tenancy deposit.
This Prescribed Information should be signed by the landlord (not a managing or letting agent) and the tenant must also be given the opportunity to sign it.
Precisely what the information should include is contained in the Housing (Tenancy Deposits) Prescribed Information Order 2007. Such information must be given to the tenant and any relevant person in the prescribed form (or in a form substantially to the same effect) within 30 days of the date on which the deposit is received by the landlord.
I would suggest that you regard the Prescribed Information order as a checklist.
If you have missed anything on that list, things are not quite right and your tenant could claim that the S21 notice served at the end of the tenancy is invalid or that you failed to properly carry out your obligation to protect the deposit through a recognised scheme.
The ideal presentation of the Prescribed Information would include the following:
- Names of all tenants and any other person (third party) paying a tenancy Deposit on behalf of a tenant.
- Name, address and contact details of the scheme administrator of the Tenancy Deposit Scheme that is safeguarding the tenancy deposit.
- Copy of an information leaflet supplied by the scheme administrator to the landlord explaining the operation of the statutory scheme and its terms and conditions.
- Information on the procedures applying to the release of the deposit at the end of the tenancy.
- Procedures that apply under the scheme where either the landlord or the tenant is not contactable at the end of the tenancy.
- Procedures that apply under the scheme where the landlord and the tenant dispute the amount of the deposit to be repaid to the tenant.
- Facilities available under the scheme for enabling a dispute to be resolved without recourse to litigation, such as a dispute resolution scheme or an independent adjudicator who may decide on any dispute.
The prescribed information should also include tenancy-specific details:
- Amount of the deposit paid. (In the case of a joint tenancy it should be the total amount paid.)
- Full address of the property to which the tenancy relates (including postcode).
- Name, address and all contact details of landlord(s) – not the managing or letting agent.
- Name, address and contact details of the tenant (including the contact address to be used by the landlord at the end of the tenancy). This information should be repeated for all tenants.
- Name, address and contact details of a third party making the payment. (If there are additional third parties, the same information should be provided for each.)
- Circumstances when all or any part of the deposit may be retained by landlord.
Linda Howard is case manager of Shoosmiths Access Legal’s landlord and tenant team.
Members of the RLA have special access to the DepositGuard scheme: www.rla.org.uk/depositguard
The best form of words to use at the end of the document would be along the lines of the example below: